Director of Public Prosecutions v Gugliucciello

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION
CR-21-02147
CR 22-02062
Indictment No. L12644493.3
& L12644493.A1

DIRECTOR OF PUBLIC PROSECUTIONS

Mario Gugliucciello

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JUDGE:	HIS HONOUR JUDGE TINNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	10 Nov 2022 (Judge Wraight - arraignment on Indictment ending .A1), 17 February 2023 (arraignment on Indictment ending .3) and 8 May 2023
DATE OF SENTENCE:	12 May 2023
CASE MAY BE CITED AS:	DPP v GUGLIUCCIELLO
MEDIUM NEUTRAL CITATION:	[2023] VCC 779

REASONS FOR SENTENCE
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Catchwords: Indecent act with child under 16 x 5, indecent assault x 1, indecent act with 16- or 17-year-old child under care supervision or authority x 1. Some rolled up charges. 49 years of age at sentence. 6 girls. Offending spanning period from 2002-2008 and then again in 2013. All occurred in setting of accused a hairdresser either touching young female staff or clients. Three children indecently touched in course of haircut. Charge 2 on indictment ending in .3 occurred after accused had been interviewed days before about earlier offending against that same girl. No prior criminal history but relevant subsequent matters including three indecent acts dealt with in 2017 which occurred in the earlier time frame against 13 and 14 year old clients. Two subsequent breaches of Sex Offender Registration Act obligations. Guilty plea. Worboyes. Delay. Increased burden owing to various issues
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APPEARANCES:Counsel  Solicitors
For the DPP  Ms C. Duckett (at Plea)        Office of Public Prosecutions
Mr Z. Petric (at Sentence)

For the Accused Ms A. Roodenburg Dribbin and Brown Criminal Law

HIS HONOUR:

1Mario Gugliucciello, you have pleaded guilty to seven offences laid across two indictments. They are all sexual offences committed upon young girls or young women. There are five charges of indecent act with a child under 16, one indecent assault and one indecent act with a 16 or 17-year-old child under your care, supervision or authority. Some of the offences are laid on a rolled-up basis. The indictment spells out which of those are rolled up.
2You were born in November 1973 and are 49 years of age. You have no prior criminal history, but some matters of relevance dealt with subsequently.
3The summary placed before me correctly sets out the offence maximum penalties and I see no need to restate them. I note the lesser penalty for Charge 5 relating to Ms Stanley.
Facts
4The further amended summary of prosecution opening for the plea dated 5 May 2023, sets out the essential sentencing facts in this case. I asked your counsel Ms Roodenburg and she informed me that this was an agreed statement. It was a lengthy document which was read aloud by the prosecutor Ms Duckett on Monday of this week and it was then marked as Exhibit A on the plea.
5I will sentence pursuant to that agreed summary and for that reason, I see no particular need to set out in great detail the factual basis of sentencing in my reasons for sentence.
6A very brief summary will suffice so that my reasons might be readily understood by anyone who happens to access them. I should say, when they are made available to the parties, there will be anonymisation of the various victims. I am sure they will understand that there can be no publication of any information that might tend to lead to their identification.
7In a nutshell, you were the owner and operator of a hairdressing salon in Centre Road in Bentleigh at the time of this offending. Your offending occurred when you were aged from 27 or 28 to 39 years of age. The indictment charges specify the date span and the years. The precise span of years is not critical, the point being there were a range of acts over a substantial enough period in your life. I will not keep repeating it, but it is not the position that there was offending throughout that date span. There are gaps, as is clear from the actual indictment dates.
8The six victims are named in paragraph 2 of the opening. So too the way they came into your sphere, either as customers or employees or in one case, both. Three of them were sisters. These were the Lynch[1] sisters, Vicki[2], Krystal[3] and Nellie[4]. Each was a young schoolgirl at the time getting a haircut from you. Their ages at the time are spelt out in the summary. The other three victims were employees. You sexually offended against them all with varying acts which are described in the summary. So touching 14 or 15 year old Vicki’s breast over her clothes and on another later occasion, cupping her vaginal area over her clothes. So those two acts rolled into Charge 1 but seen as against the broader context of other conduct described in the summary. You had been cutting her hair since she was 12 and she was overwhelmed by your conduct. Charge 3 relates to her sister Krystal when she was 14 and 15 years of age. There are two acts rolled into that charge. So your hands going under the drape and between her legs with the tips of your fingers touching her underwear as she received a haircut from you when aged 14, as well as on another occasion when she was 15 years old, having you reach in front of her and slip your hand under her top touching her breast. This later act occurred when she went into the salon to see her mother who was having her hair done. So incredibly brazen conduct, as much of this conduct was. Charge 4 relates to Nellie and rolls up two acts, when she was 13 or 14 involving you touching her nipples on multiple occasions as you purported to measure her hair, the second involving your wandering hands up her dress, hands grabbing her inner thigh to pull her closer and then touching her on top of the vagina over her underwear. Those two acts are rolled into Charge 4, but the broader context is spelt in the agreed summary. Going back to Charge 2, that relates to Jane Marsh[5], an employee of yours, and a young girl who had done work experience with you when she was in Year 10. This is laid as an indecent assault, not an indecent act against a child under 16 given the spread of dates and her age. I was told it related to an event when she was 16 years of age. She was in the kitchen at the salon, so in her workplace, when you came up from behind. She complained of sore shoulders and you reached over in front of her chest and then grabbed her breast over her clothes. Now that is a specific charge, but again, there was in her case a broader context as is described.
[1] A pseudonym
[2] A pseudonym
[3] A pseudonym
[4] A pseudonym
[5] A pseudonym
9Then there was Cindy Stanley[6]. She had done work experience as a student and then was offered casual work as a shampoo girl. She was 17 years of age at the time of the offending and plainly was under your care, supervision or authority. Again, the broader context is described. So too, the actual acts that are rolled into Charge 5. Those three acts took place in the one incident on 7 November 2007. Having checked her hair for lice, you lifted the back of her dress up and touched the top of her stockings and over her vagina. You then pushed your erect penis up against her bottom. You turned her around so her head was near your chest. There were some interruptions from Ms Marsh. They did not deter you from continuing after she had left. You then purported to check Cindy’s hair at the front for lice and put your hand down the front of her bra and touched her breast. She pulled her dress back down. She resigned soon after, having disclosed your conduct to her parents and then to the police. She made the decision not to pursue the matter at that stage.
[6] A pseudonym
10The final charges are those on the separate indictment and were a number of years later in 2013 when you were 39 years old. They targeted yet another of your employees, Victoria Meyer[7]. She had been working with you in that salon as a 14 and 15-year-old girl. On two occasions between September to October 2013, when she was 15 years of age, you asked her to rub your penis. The first of those was when she was in the back room with her back against the bench. No one else was present within the salon. You stood close to her, undid your belt and you asked her to rub your penis. She did so over your pants. She refused your request to lie down on top of you. The second occasion rolled into Charge 1 on that indictment was an occasion late at night in the back room, when everyone else had gone home. Again you asked her to rub your penis and she did. Again, this was over your clothes. So those two acts that I have described are rolled into Charge 1. There is a long story to the circumstances leading to the matter coming to light. In short, as result of Victoria talking to some of her school friends, the school then became aware of some allegations and they contacted Victoria's mother. The police turned up at school as well. Victoria ultimately decided to make a statement of no complaint. She resigned from the job. As she said at the committal, she was distressed, thought you cared for her and she did not want to upset you or get you into trouble. See the cross-examination pp113, 114. I interpose that I raised these exchanges with
[7] A pseudonym
Ms Roodenburg on Monday of this week. So she was put on notice and she had no issues with me having regard to those matters and I do.
11Despite her statement of no complaint, you were however arrested and interviewed by the police on 13 November 2013 and you made full denials on that date in that interview.
12Quite incredibly, you then telephoned Victoria and arranged to meet her at the salon. You said you wanted to speak to her about the report to the police. You then met with the young girl at the salon, outside salon hours. It appears that this was on 16 November 2013, but nothing hangs on that. You took her to an upstairs storage room and asked her to lie on the ground. She did. You touched her, this time under her clothes with your fingers on her vagina, skin to skin, but without penetration. By 19 November of 2013, police had got wind of this conduct and on 26 November, they re-arrested you and interviewed you on that date. You denied any sexual offending against her, either occurring on that later date or any earlier date. You did agree that you had rung her to find out what was going on and that she had attended the salon where you had spoken in a back room where you told the police she had apologised for what had happened. In fact in that police interview, you asserted that she had told you that she had been making false allegations against you to get attention. See depositions at page 300. Again, I raised that passage with Ms Roodenburg, but I need not have, given that it was after all, your account to the police in relation to this later incident and the earlier incidents and the interview is of course referred to in the opening.
13Again in her case, there was a broader context as described in the summary.
14The summary sets out the manner in which the various matters ultimately came to be prosecuted. So the date that various complainants came forward or were contacted by police. The third police interview was conducted in late November 2019. Now this interview did not deal with Victoria Meyer’s allegations, because a statement had not been taken from her at that time. It did relate to the five victims of the first indictment. You denied any inappropriate touching of Ms Marsh and whilst you otherwise declined to comment as was your absolute right, towards the end of the interview after the allegations had been placed before you, you said that none of them were true, that you did not recall any other and that you did not do any of that which had been alleged. See the depositions at 305.9.
15As I said in the course of the plea, when this brief was assembled and the other complainants were contacted, all your chickens then came home to roost.
16You conduct was disgraceful. It was serious and the seriousness of it is really not to be gauged merely by looking at the physical acts. The context and the surrounding circumstances are of course important. Touching young girls who were your paying clients, whose parents trusted you to actually do your job. Touching them indecently as they sat in their school uniforms in your chair. Touching young female staff indecently. Your ongoing claim made to some of there being no sexual motivation in relation to the touching of the five girls on the first indictment is of course a complete nonsense and is inconsistent with your plea.
17I have mentioned a number of times the broader context spelt out in the agreed summary. I asked Ms Roodenburg and she told me that the summary is an agreed one and she was explicit in stating that the broader context is also admitted.
18I have mentioned that some of the charges are laid on what is referred to as a rolled-up basis. Some are laid on an individual or specific basis. Importantly, no charge is laid on a representative basis, so insofar as there is reference in the summary to uncharged conduct, whether in relation to rolled up charges or specific charges, that is there only as to the agreed context. The further amended summary includes that word 'context' and that was no doubt in response to a query that I had my associate send to the parties on Friday of last week, as to the nature of the conduct actually embraced by the rolled-up charges and the manner in which I might have regard to uncharged acts referenced in the earlier form of the summary. Your counsel replied to that enquiry citing the case of Amaral.[8] See Ms Roodenburg’s email marked as Exhibit 6 on the plea.
[8]DPP v Jason Amaral (a pseudonym) [2020] VSCA 290 (“Amaral”)
19I accept your counsel’s submission, that the reference to uncharged conduct or context does not permit me to sentence you in relation to that conduct or to in any way treat the charge as a representative charge. It is not. That conduct is admitted and of course it impedes your counsel from submitting that the touching was isolated in any of the particular cases where mention is made of the broader context. I sentence consistent with the observations of the Court of Appeal in that case Amaral.[9]
[9] Ibid at paras [37] to [42]
20There is a lengthy chronology of the matter in your counsel’s submissions and some details of the chronology in the written Crown submissions and I will speak of that chronology in due course, probably in more length than I should I suspect.
21So much then for what really is only my brief summary of the agreed summary. I will sentence pursuant to that far more detailed factual statement which spells out very directly, what you did to these various young girls. Your counsel concedes the inherent seriousness of crimes such as these.
Impact
22I turn now the impact material placed before me. Cindy Stanley chose for whatever reason, not to make an impact statement. Of course, that is her right. She resigned back in the day owing to your conduct. She made a statement of no complaint back then. See page 62 of the depositions.
23The impact statements that do exist have been read aloud. Vicki, Nellie and Krystal Lynch read their own impact statements. So did their father,
[10] A pseudonym
[11] A pseudonym
Victor Lynch[10], though there were three portions of his impact statement judged correctly by the parties to be inadmissible, which were not read aloud and upon which I will not act. Victoria Meyer read her own impact statement. Jane Marsh’s statement and Margaret Lynch[11]’s statements were read aloud by the prosecutor.
24Now I will not go chapter and verse through those impact statements. My reasons for sentence are going to be extremely long. What is very clear though from this material is how deeply your criminal conduct has impacted upon the lives of these young girls, as they were then. Young girls who are no longer young girls, they are now young women and they are still deeply affected. You skipped on to the next victim or the next phase of your life. Your counsel took no issue with the impact of these crimes and did not challenge my statement made in the course of the plea that you really had left behind you a trail of wreckage.
25Your conduct has impacted on so many aspects of their lives. I set out just a few of the sentiments of the individual victims, but of course, I must and I do take into account the more complete victim impact statement.
26What remarkable statements they were. To see them read was a pretty sobering experience. To see Ms Meyer grapple for quite some time, for the composure to actually utter the first words sums it all up. It was not stage fright. It was the deep emotion of recounting the impact of your crimes from a decade ago. It must make something of a nonsense, at least to the victim looking on, as counsel and I then went on to engage in legalistic discussion on the plea, as to the ‘fleeting’ nature of the touching and the ‘relative level’ of offence seriousness in the instant case. Well those discussions must be had, as I have to consider the nature and gravity of the offence, but for the victim, well the impact is the impact, irrespective of how the offence might be characterised by a barrister in a court, or how long it might have taken for the offence to occur.
27Vicki speaks of the ‘girl in the chair with nice hair.’ Well, that girl was her, as she was, and she speaks of all the things arising from your crimes, all the impacts reverberating through the decades. She is now 35 by my calculations and she is still confused and confronted by your acts. She is still waking up from nightmares. She is willing that girl in the chair to do or say something. She has undergone counselling. Your offending has affected her life in so many domains, including in her intimate relationships. One of the impacts for her is her sense of guilt. A sense of failure, her failure in her role as the eldest of the three sisters. So a failure to have protected her sisters. Well she was a child and of course, she ought feel no such guilt, but she does and she is starting to recognise correctly, that the only person at fault was, of course, you. What a powerful impact statement.
28Krystal speaks of a sense of powerlessness. She speaks of her anger. There has been depression, there has been anxiety. There have been impacts upon relationships and the need for psychological support for her as well. Large impact.
29Nellie felt violated, ashamed and powerless. She too struggles with anxiety and depression. In her case likewise, there has been a financial impact with countless counselling sessions.
30The girls’ mother Margaret also feels a sense of guilt. She should not either, but she does. She was distraught to learn that you abused her three daughters. The father Victor Lynch can barely control his rage at what you have done. He grieves for the fact that his daughters coped with this as best they could in silence for all those years. He has internalised his anger and he also feels guilt about what happened. He should not, but he does.
31Jane Marsh is now 34. She spent half her life seemingly haunted by what you did. She feels her relationship with her own body has been damaged. There is anger. There is impact upon her intimate relationships. She speaks now on behalf of her younger self. Victoria Meyer is the youngest of your victims. She is now 24 years of age and she has been very deeply affected. She ponders what she would have become without your conduct and of course, she will never know. Memories are triggered by many things. A song or a person’s appearance. Her memories of her last years of school, things that should be happy memories, are blighted by this episode. She blamed herself but of course she should not. This was her first professional relationship with a man and that has impacted upon many that followed. There is anger. There are feelings of confusion, shame and self-blame. The court process has been drawn out and stressful. She says you changed her life and there can be no doubt about it.

32Well you saw these women, they are women now. As I say, Vicki Lynch is by my calculations, 35 years of age, her sisters Krystal and Nellie 31 and 29 years of age respectively. Jane Marsh is 34 year of age and Victoria Meyer is 24 years old. You saw some of them reading out or trying to read out their impact statements. Well it is your conduct that has caused this impact Mr Gugliucciello. Your choices. Your crimes.
33I have said already, I put aside the sentiments of Victor Lynch, the father of the three sisters where he expresses some pretty strong thoughts in your direction. His feelings towards you are understandable, but of course they are irrelevant to my task and I put those statements aside as I must.
34Now I have only touched upon a few aspects of what is within the various impact statements. I take into account the more complete documents which I have read again since Monday.
35I suppose I might have just come onto the Bench, and in my reasons stated blandly, that I take into account the impact of your crimes and left it at that and then moved onto other matters; matters concerning you. But why should I do that? You see, this is not just all about you. This is the only opportunity your victims get to describe or try to describe the impact of your crimes. I am sentencing you for the crimes you committed upon these girls.
36The impact of a crime is one of a large number of matters that the court must take into account. There are many other matters that I must have regard to, including the various matters in mitigation that have been placed before me by your counsel Ms Roodenburg, matters which I will soon turn to. As I said on the plea, I must not let the impact of your crimes swamp my consideration of these other important sentencing factors in this case and rest assured, I guard against that. I am not here to respond, or to act emotionally in the exercise of my sentencing discretion. That is why I must put aside some of the father’s strong statements.
37But I am required to take into account the impact of your crimes. That impact has been very significant indeed and it has changed many lives for the worse. Lives that are still affected all these many years later by crimes many of which you claim you cannot even remember.
Plea in Mitigation
38Your counsel, Ms Roodenburg, conducted a very comprehensive and able plea on your behalf. She relied upon what was described as an outline of submissions on the plea dated 3 May. It ran to seventeen pages with an additional three pages of chronology, so it was hardly an outline.
39She relied upon a report from the psychologist Ms Carla Lechner, as well as a handful of character references. She placed before the court a report of
Dr Grech which was referred to in Ms Lechner’s report and also referred to in the written submissions placed before me. She placed before the court details of your subsequent offending and by 'subsequent', I mean the offending dealt with on those three occasions since 2017. There was one summary relating to one of the breach of the Sex Offender Registration Act obligation matters, as well as the LEAP history which I marked as a matter of completeness. Finally, there was the email correspondence relating to the ‘uncharged context’ material that I have described, as well as the Judicial College Victoria sentencing snapshot in relation to the crime of indecent act.
40She made detailed submissions as to the objective gravity of the offending, and as to your family, educational and work background, as well as your personal and family circumstances at the time of the offending and since. She highlighted the absence of any prior criminal matters.
41She made submissions as to your prospects of rehabilitation. She also made submissions as to the weight to be given to the various sentencing purposes in this case, as well as the importance of totality considerations.
42She relied upon the following matters in mitigation:
·   Your relatively early guilty plea in the course of the global pandemic;
·   The presence of remorse;
·   The delay, in particular, the delay since being interviewed in late 2019 and then charged and to now; and
·   Should you be sent to prison, she relied upon an increased prison burden upon you, arising from your concern as to family and business circumstances as well as the impact of COVID-19 upon prisoners.

43She took me to a single example of another sentence imposed in another case, as well as the Judicial College Victoria sentencing snapshot for indecent act with a child that I mentioned a moment ago.
44She argued that it would be open to deal with you by way of a standalone community corrections order. That is to say, that you ought not serve a single day in custody. So her principal submission was that a prison sentence was not even warranted on any of the charges on either indictment. If I was against her on that score, she argued then in favour of a suspended sentence in relation to the five charges on the first indictment (ending in .A1) and a community corrections order on the two matters relating to Ms Meyer on the other indictment (ending in .3). At first blush, that would appear to be an unusual submission, in that she readily conceded that the second charge on that second indictment was the most serious crime across all the charges. So the notion of the most serious crime being met with a lesser sentence would have a pretty strange feel to it. However, that seemingly incongruous mixed outcome, which I acknowledge was not her primary submission, was driven by the abolition of suspended sentences in 2013, which impeded any consideration of a suspended sentence for the 2013 offending. Her submission was that, however the sentence was structured, that you should not serve a single day in custody. That was a very big ask.
Prosecution
45The prosecution had filed some written sentencing submissions marked as Exhibit C. They made a number of sentencing submissions, either in that document or in the course of the plea, dealing with the objective gravity of the offending and the minimal nature of your remorse. They addressed me on the delay point, providing some explanation at least for the period between interview and charge. They did not accept that the delay was as powerful a matter as was raised in some of the cases referred to. Nor the remorse, as expansive, as was originally mooted by Ms Roodenburg. I said minimal, they argued it was limited. They submitted that despite the passage of time since the last offending, that specific deterrence was still of importance given the duration and persistence of the offending, the age of the girls and the setting. Very surprisingly, the prosecution conceded that such an outcome as had been submitted by your counsel, was in fact open to the court. That is to say, a stand‑alone community corrections order for all the charges which was of course the primary sentencing outcome urged upon the court by Ms Roodenburg.
46The written submissions detail the reasons that outcome was said to fall within the range of sentences open to the court.
47Well I made very plain to Ms Roodenburg that she should take no comfort at all from that prosecution submission and not abbreviate her plea in consequence of it. That she ought really leave no stone unturned on the plea. That is because the appropriate sentence is not arrived at by agreement between the parties. The parties are not charged with the duty of exercising a sentencing discretion, I am. My statement came as no surprise to your experienced counsel who then rose to the challenge and ran a very comprehensive plea indeed on your behalf. We sat for pretty much the entire day on Monday and she said everything that could be said on your behalf.
48Submissions as to penalty, whether made by your counsel or by the prosecutor, are in no way binding upon me. I do not ignore anything raised before me by either side, but ultimately of course, I must exercise my sentencing discretion and impose the sentences which I believe are required by law in this case.
49Since Monday, I have been reflecting on those submissions, on the materials raised on your behalf, on the submissions made on behalf of the Director and also on the nature and the gravity of the offending and its impact. I have re-read all of the materials filed by either side and read the various cases of importance referred to. I have given the matter much anxious consideration.
Background
50Before dealing with the submissions made on your behalf, I will turn to your background. I am going to do that in a very abbreviated fashion, as I see no purpose in setting out all the detail that has been presented to me. There is for instance much detail in the outline of submissions, as well as in Ms Lechner’s and Dr Grech’s report. I have no reason at all to doubt what I have been told about your personal and your family background, so I act on that material.
51You were born in November 1973. You are now 49 years of age. You were born in Australia, the second child of migrant parents and you grew up in Huntingdale. You have an older brother. It was a happy childhood with hardworking migrant parents. It was a close family. You completed Year 12, but were an average student. There was some bullying in the course of schooling owing to your ethnic background. You did a hairdressing apprenticeship after leaving school and you have worked in that industry ever since. In 1997, you purchased the business where this offending took place, Hairlord salon in Bentleigh. You ran the business for 23 years. In 2019, you started a new salon in partnership with Ms Walmsley who has written a strong reference. She speaks of the altered arrangement for female clients. COVID 19 struck in 2020 of course and times were very tough in that industry. There are some sizeable debts that I have been told about. The business survived and is now busy and I have no reason to doubt that your absence from the business would be of real significance.
52You met your wife to be Anna when you were 19 and you married in 1998. So you have been married now for about 25 years. She is supportive of you. There are three children of that marriage, Luca who is 14, Mia who is 12 and Marco, who is seven. Ms Roodenburg told me that there had been serious issues conceiving. Your wife in fact required some surgery and apparently each pregnancy was difficult. See paragraph 11 of the outline. You own your own home, though that was not without some sizable difficulties owing to the builder going into liquidation. That was a stressful time and there is greater coverage of that in the report of Dr Grech. You do not drink to excess and you do not use illegal drugs. You meet with a group of cyclists five days a week as I understand it.
53Your own parents are both still alive, though your mother is not in good health at all. See paragraph 8b of the outline. You assist your parents regularly. Your brother is also living locally. As I say, it is a close family.
54You have no formal prior criminal history, but you have those three subsequent court appearances listed in the LEAP document that has been placed before me. Ms Roodenburg told me that the 2017 appearance at Melbourne Magistrates Court related to three indecent acts committed upon two child clients back in the early 2000’s. One girl was 14 at the time of the offending in either 2001 or 2002. The other girl was 13 when you offended against her in around 2004. There is no available summary in relation to that matter and even if there was one available, it would not necessarily be the one placed before the court. Your counsel told me the offending was of a similar nature to the offending committed upon the clients in the five charge indictment before me. So touching over the clothes in the course of a haircut. She told me it related to touching over the breasts. She said it was reported in 2016, you were arrested in June 2017 and charged in that year. Your counsel in her written submissions referred to your counselling with Dr Grech at paragraph 60. I note the report of Dr Grech had you deny the offending in very strong terms, swearing that the conduct did not occur and telling him you did not know why this was happening to you. You told Grech:
'I value my reputation as a competent and professional hairdresser. This is my bread and butter and (sic) would never do anything to put my job or my family at risk'.
55Nonetheless, you pleaded guilty to those three charges in 2017. I was told that you completed that community corrections order without incident, but that statement really had to be amended as it was plain, that your first breach of the Sex Offender Registration Act obligations occurred in the currency of the community corrections order. In fact, it did not relate to failure to report a phone number as I had been advised. It related to failure to actually attend the initial report. Ms Roodenburg informed me that you interpreted the reporting for induction on the community corrections order as satisfying that initial report, which it did not, but your explanation actually seems likely given the penalty imposed and the fact that you were not breached on the community corrections order. The second occasion that you failed in your reporting obligations under the Sex Offender Registration Act, related to failure to provide a new phone number. Ms Roodenburg said it was an oversight and again the penalty imposed in the court below would support that view.
56There are the five character references which spell out your many qualities, including your preparedness to assist others, including those in need. I take into account those references. Plainly enough, your wife and Ms Walmsley were very much aware of the nature of the alleged conduct. They sat in court and they heard the opening. I am less sure about the extent to which the other authors including the Renna’s, were 'across' the actual detail of the allegations. They had not been provided with the summary and when I raised this issue with Ms Roodenburg, she told me that you were the person who had disclosed what had been alleged. Well, you are hardly a reliable historian in relation to the acts. You are a person who, on Ms Lechner’s view, minimises the offending to a degree. You persist in asserting a lack of any sexual motivation for most of the offending before me. However, I do not doubt that those other three authors know the broad nature of the allegations and that you have pleaded guilty to sexual offences against children. Their references say as much. It really would have been preferable for someone other than you, to inform them as to the nature of the agreed offending, but I have no reason to reject their references in the circumstances and no reason to think that their view of you would alter if shown the full summary.
57There is nothing in your background which explains this offending. There are references to stress in your counsel’s outline, but I am not satisfied on the balance of probabilities that this can really be any answer at all here. Nor does your counsel suggest it was in any way causative. It cannot be forgotten that your offending spans a period of over a decade from when you were 27 or 28 to 39 years of age, though not continuously. It was unmistakably sexual in nature, though you have great difficulty admitting as much. You have admitted that by your plea, but you must still be clinging on to some version of accidental entry into the space of others. That can be gleaned really from your wife’s reference and more significantly, from what you have told Ms Lechner. Well, I cannot stop you from clinging onto that narrative, but it is a false one. I cannot act on any such basis. By your plea, you have admitted your guilt of indecent assault and indecent acts. Your conduct was not isolated and it was unmistakably sexual. It targeted a number of children and also your staff. These six victims now brings the total tally to eight. So eight females, many of them children, all offended against by you sexually over a period spanning a decade. The offending covered by Charge 2 on the second indictment took place shortly after you had been arrested and interviewed by the police and had falsely denied any sexual offending against Victoria Meyer. You, a 39-year-old man, then arranged to meet that same girl and committed Charge 2, which involved skin on skin touching of her vagina and then lied again in the second interview conducted later in November 2013. Stress is no explanation for your offending at all.
Guilty
58I turn then to the matters that have been raised on your behalf in the course of the excellent plea conducted by Ms Roodenburg. Now there was some lengthy discussion in the course of the plea, as I wanted a clearer understanding of the position of each party on this point. I am not going to wade my way through the extensive chronology in my reasons. It is set out in great detail in the defence chronology and also the Crown chronology and is referred to in the written outline of your Counsel in paragraphs 28-37. It is plain enough that you took steps in an endeavour to resolve the matter from a pretty early stage. You were charged in October 2020. You made plea offers prior to the committal, which was listed in early October 2021, but they did not in involve any preparedness to plead to any charge relating to Ms Meyer, in relation to the incident that had taken place after the first police interview. The first offer in relation to the second incident for her was made on 6 September 2022, so almost two years after you had been charged. Plainly enough, the sexual penetration charge in relation to her posed a significant obstacle to the resolution discussions and the Crown made that clear. Why that prompted the need for a full-scale committal, where all of the girls were cross examined on your behalf is far less clear to me, but that is what happened, and it was your right. The contested committal was conducted over two days in October of 2021 and then there were a number of listings in this court. By 6 September 2022, you had made your first offer to plead guilty to the ‘post police interview’ incident upon Victoria Meyer, but on a non-penetrative basis. That offer equates with what the Crown has ultimately accepted, but your offer was rejected by the prosecution back in October 2022. It should not have been.
59There were offers made on a representative basis and on a rolled-up basis in relation to the other five girls. I am not suggesting that was any strategy. From time to time, a different basis was being mooted by the prosecution. Ultimately, in October of 2022, your renewed offer to plead in relation to the other five complainants was accepted on the basis now before me and the
Victoria Meyer matter proceeded to trial on its own. That itself had a strange aspect to it in that the Crown in that trial, retreated from tendency reasoning relating to the other girls and it is hard to imagine a stronger basis for such reasoning than existed in this case. Apparently, that was a condition of the plea offer that had been made. Whether or not that was appropriate is not my concern. So I put that issue aside altogether. In any event, that three charge trial indictment relating to Ms Meyer that contained the charge of sexual penetration came on for trial and lay in the trial reserve list in November of last year, but regrettably was not reached. You reiterated your offer to plead on a non-penetrative basis both before and after that listing. In February of this year, Judge Mullaly of this court made some comments about the Crown rejection of your plea offer and urged some reconsideration of that stance. The matter came to me for the trial later in February and I endorsed those statements and the matter settled. It really should have settled in September or October 2022 on the terms offered by you.

60Well I have not set out every date in the chronology. I do not see the need to. I will treat the pleas as relatively early. Your counsel accepted that the plea to Charge 2 on the second indictment was a later one, but I must not lose sight of the fact of a more serious charge being in existence, which was something of a real impediment.
61Your counsel was not suggesting that any of the pleas were made at the earliest opportunity and as I say, a number of the complainants have been cross examined. That is regrettable, but it was your right to run the contested committal and that cannot be held against you.
62You have taken what I will treat as relatively early responsibility for your offending by pleading guilty and this has to be adequately recognised in my sentences.
63As a result of your plea, the time, the cost and the effort of an actual trial in this court, has been avoided. None of the witnesses have been required to give evidence in a jury trial. You have, in these ways, facilitated the course of justice.
64Your guilty plea is worthy of extra weight for the many reasons set out in the Court of Appeal decision of Worboyes[12], reasons which have been expanded upon in other cases including the case of Barnard.[13]
[12]Worboyes v The Queen [2021] VSCA 169
[13]Barnard (a pseudonym) v The Queen [2022] VSCA 42
65A large backlog of cases arose in the course of the global pandemic. That was unavoidable and arose because we could not run jury trials at certain times over 2020-2022. You must get the heightened benefit of pleading guilty amidst the global pandemic, even though the backlog has been easing. I take these various matters into account in mitigation in the way contemplated by your counsel in her written outline at paragraphs 28-37 and the oral submissions that she made before me.
Remorse
66I turn now then to the issue of remorse. I make it very clear that whether you are remorseful for these crimes or not, does not impact upon the allowances I have already spoken of in relation to the value of your guilty pleas. Those matters exist irrespective of whether there is remorse or not. I have significant reservations as to the extent of remorse in this case. It is true, you have pleaded guilty, but not every guilty plea is indicative of remorse. Some are, some are not. Your counsel initially argued that you were deeply remorseful and she stated in the written outline, that you have expressed ‘sincere remorse and regret for his actions to his family and friends’ see paragraph 38. It is fair to say that in the course of discussions on the plea, including discussions about the existence of some matters within Ms Lechner’s report, your counsel retreated from that submission as to fulsome remorse and argued that I should find the presence of some remorse in this case.
67Well, I do not doubt you are very sorry to find yourself in this position. I do not doubt you are very sorry indeed, to place your family and your friends and your work partner in this invidious position either. None of those things necessarily conveys remorse for the commission of the crime. I have no reason to doubt that you are making such statements as are referred to in the references, including that written by your wife, or the statements made to Ms Lechner. I will deal with what might be implied from your plea in one moment. But I am dealing with the concept of actual remorse or contrition for your criminal behaviour against these victims. Where is the evidence of that? I recognise I am dealing with the existence of remorse now, not at the time of the crimes or the police interviews, though that is a decent starting point at least to track through.
68As a starting point, you conducted yourself in this way over a number of years. I am dealing with six victims, children or young women. You had denied any indecent touching of Victoria in the two police interviews back in 2013 and in the 2019 interview, you denied any improper conduct in relation to Jane Marsh and the other four girls the subject of the first indictment. You conducted the full committal hearing in October of 2021. Now of course, I accept this was after you had offered to plead in relation to five of the girls on the major indictment and the plea offer had been rejected. This was your undoubted right to proceed in this way. Of course your counsel was then engaged in cross examining women you knew you had offended against. The girls, now women, were cross examined by your then counsel, not by Ms Roodenburg, about hairdressing techniques and it was plainly an approach designed to raise the reasonable possibility of accidental touching, if there was any touching at all. Victoria Meyer was also cross examined. I remind you she was offended against after the first offending against her had come to light in late 2013. You were interviewed by the police in 2013 and denied any inappropriate touching. You then arranged for her to come to the business after hours when no one else was there and that was the setting for the touching the subject of Charge 2 on that indictment. When interviewed on that score, you gave an account to the police of meeting and her providing to you an account as to why she had made false allegations against you in relation to the earlier touching. You denied any touching on the later occasion as well. Well that is back in the interview, back in 2013, so, many years ago.
69That matter though was proceeding to trial and a defence response had been filed and that defence response denied any sexual touching at all. We were ready to empanel a jury and that defence was the defence that was going to be run before the jury. Again though, I accept there was a charge of sexual penetration and that was the impediment and it was plainly your right to proceed in this way. I have pondered whether this is suggestive of remorse. Ultimately, I believe it is better to treat that document as a formal document that had to be filed, in a setting where there was a charge which was disputed and which ultimately did not proceed. When seen in that light, I do not believe it is a document that I should in any way hold against you in the assessment I am undergoing. Nor for that matter, the holding of a committal in this case. It was your right. So I put those matters aside. I have dealt with them because there was some discussion of these issues in the course of the plea.
70Significantly though, you saw Ms Lechner in April of this year. You could give her no explanation for the bulk of the offending. You claimed not to recollect most of it. She had something to say about that in her opinion where she mentioned this concept of cognitive dissonance. Your counsel mentioned that maybe you could not remember each interaction. Of course, I accept that that is possible. You mentioned to Ms Lechner ‘stressful times’ in your life. You told her you did not believe that the touching was sexually motivated, but as I have said already, that is impossible to accept, and a fair reading of her report makes it clear that she does not accept it either. You told her:
'I took people’s personal space for granted… If I made them feel unsafe, then I’m upset for them. I can imagine how they might have felt'.
71It is not if, Mr Gugliucciello. That is the style of non-apology often enough offered up by footballers after a drunken night of debauchery. The concept of personal space was picked up also by your wife in her reference, where she said:
'He has changed the way he cuts hair to minimise being in a client's personal space'.
72This hints to me of ongoing accounts from you minimising the offending. See page 8 opinion point 4 where Ms Lechner says:
‘In respect of the charges, Mr Gugliucciello stated that although he did not perceive his actions to be deliberately sexual in nature (apart from that relating to Victoria Meyer) he acknowledges that the complainants may have perceived it as such with attendant distress'.
73Your conduct had nothing to do with accidental or innocent encroachment into the personal space whilst legitimately cutting hair or whilst working around the salon. It had nothing to do with how your conduct was perceived. You were deliberately indecently touching people, making use of the opportunity presented by the circumstances in which the young female client or female staff members found themselves in. Lifting Ms Stanley’s dress, touching the top of her stockings and her vagina over the clothes, pushing your erect penis up against her backside, touching her breast. For heavens, sake you had your hand on Nellie’s underpants above her vagina as you were purporting to cut her hair. I will not restate the agreed facts in relation to the various victims.
74Despite your guilty pleas, the seeming persistence by you in this nonsense of non-deliberate touching or touching without any sexual motivation leaves me with some strong reservations as to the extent of any remorse. Now, I do have statements made by Ms Lechner and others as to your expressions of remorse or their assessment or opinion of remorse. When they are relying upon your statements, they are statements made by the person who says he did not believe there was sexual motivation and the person mentioning this concept of personal space. At the same time Ms Lechner speaks of the extent of minimisation and the reasons for it, in the opinion point 4. She quotes you in relation to those matters I have already mentioned. She claims that you are not victim blaming and yet you provided a pretty unusual account in relation to Ms Meyer, the only matter where you were conceding a sexual element where you said:
'She was a part time assistant …I wasn’t attracted to her, but I think she showed some interest and it went from there….. I should have known better'.
75Ms Lechner reports you were saying:
'He believes his ego got the better of him hence his sexual interactions with her that he totally regrets for his sake and for hers'.
76You were 39 years of age, she was 15 year of age, and you did know better,
Mr Gugliucciello. You most certainly did. You had been arrested and interviewed by the police only days before and it was you arranging the very same victim to attend at the salon at a time when no one else was present.
77I am not satisfied on the balance of probabilities that there is fulsome remorse here at all. However, I am prepared to find the existence of some limited remorse in this case, mostly to be implied from your guilty plea and I take that into account in your favour.
Report of Ms Lechner.
78I have mentioned the report of Ms Lechner on a number of occasions. The report is in no way relied upon as attracting any of the principles from the case of Verdins[14] or Brown[15]. Your counsel was explicit on this point. Your counsel in her written submissions has, under the heading, ‘Mitigating Factors’ listed the subheading ‘Mental Health’. There she sets out details of some stressors, for instance, the matters I mentioned earlier, the difficulties in conceiving and steps taken in that regard and the serious financial issues connected up with the disastrous building project later on. I do not accept the contention implied in the written submissions that stress or any mental health issues had any role to play in this offending. See the outline, paragraph 10-13. This was not offending driven by stress.
[14]R v Verdins [2007] VSCA 102; 16 VR 269; 169 A Crim R 581 ('Verdins')
[15]Daylia Brown v The Queen [2020] VSCA 212; 62 VR 491
79The plea took an unusual turn at one point, when I raised the issue of the attraction that you must have felt at the time towards young teenage females. Ms Roodenburg challenged that view and said there was no evidence to support that. I confessed I was slightly puzzled as the facts themselves admitted of no other sensible explanation. Six victims, all young girls, all young women, all touched in the brazen manner described both charged and uncharged. So not isolated conduct at all, spanning many years of your life. Then we are able to add in the other two, the 13 and the 14 year old child victims from the 2017 proceedings. I am not dealing with those crimes, but I was told by your counsel that you committed them in a similar setting. Well when I said what I said, I was pretty much quoting from Ms Lechner’s report where she said at page 1 of her report:
‘Mr Gugliucciello does not exhibit overt symptoms of a psycho sexual disorder although the pattern of his offending over a lengthy time span is concerning and indicative at the very least of past hebephiliac sexual interests (that is of post pubescent teenage girls)'.
80I add, by a man who for whatever reason, cannot or will not 'own' his conduct. There was a strange ongoing debate on this topic where Ms Roodenburg claimed that Ms Lechner had not concluded that there was an interest in young girls back in the day. Well as I say, it was Ms Lechner who said ‘at the very least’ and there were other portions of the report that were being relied upon in a mitigatory fashion, as disclosing the likely past hebephiliac interest being now in remission. See page 6. See also page 8 opinion, point 1. I found the discussion to be distracting, but ultimately of course the report is still useful and importantly, it speaks of the present position. It sets out your personal background in detail as well as treatment considerations and an opinion as to your ability to engage in consequential and reflective thinking. It comments on your reactive anxiety which of course is germane to my consideration of the delay point which I will turn to in a moment. You are of average intelligence. I have already spoken of your denying to Ms Lechner that the actions were sexually motivated. Plainly they were. Your account of the offending against Ms Meyer puts it down to her interest, not yours and your acting with your ego getting the better of you. As I say, she was 15 and you had been investigated already by the police, interviewed only days before. I reject your account altogether. It is very obvious that you had, for whatever reason, an attraction to her and to other young girls. I am satisfied of that beyond reasonable doubt. That was then, and ‘then’ was a period spanning a period of around a decade though as I say repeatedly, not continuously. Ms Lechner also conducted a risk assessment. Now of course she acts on your account of having no sexual interest in young girls and of course there is no further offending since 2013 and she pays regard to that as one would expect she would. She says that the likely past hebephiliac interest is in remission. With the exception of the Sex Offender Registration Act offending, as a matter of fact, you have been offence free since 2013. That is plainly a matter of importance in my task.
81She administered the two tests or protocols the Static-99 and the RSVP. On the first test, you fall in the low to moderate class in terms of risk of sexual reoffending. Your offence free status over the last 10 years reduces that to a low risk. Ultimately she is of the view that the results from the two tests, and her assessment upon interview, are indicative of a low risk of future sexual offending. That is mainly owing to her view that your past hebephiliac sexual interests are likely to be in remission. And as I say, she acts on your present account of currently not having any sexual interest in young girls or teenagers, the very sort of statement you still cling to in relation to five of the victims and to a lesser degree in relation to Ms Meyer.
82I will act on the report in the ways contemplated by your counsel. The distress spoken of in the report is not relied upon in a Verdins limb five fashion, arising as it does in a distress scale or a depression inventory designed to measure the existence of symptoms over the previous four or two weeks. These things are reactive, but they can still be taken into account in a general way by me and also when considering any burden arising in the course of the delay. There is nothing in the report reducing any moral culpability and insofar as she speaks of the burden of imprisonment in your case, should you be imprisoned, well it is obvious, it would be obvious to anyone, that prison would be difficult for one such as you and that the burden would be increased by your knowledge of the worrying plight of your family in your absence. See opinion point 5 in the report. I take into account the report in the manners contemplated by Ms Roodenburg.

Delay

83I turn now then to the issue of delay.
84Before proceeding any further, let me say that generally it just is not a profitable exercise for a judge to conduct an audit as to the reasons for delay in a matter being finalised before the court. What is far more important is the impact of any delay and the steps taken to rehabilitate in the period of the delay, not the reasons or the responsibilities. After all, even a delay brought about by an offender absconding does not extinguish all mitigatory claims based on delay.
85However, delay in itself creates no automatic right to a sentencing discount. There are two limbs to delay operating as a mitigating factor, the first limb relating to the unfairness of a charge hanging over the head of an offender and the anxiety ensuing, the second limb concerning the progress that has been made towards rehabilitation in the period of the delay. How these limbs operate in a mitigatory manner will depend upon a variety of reasons, including the cause of the delay, the length of it and the consequences of it.
86Delay is most commonly a mitigating circumstance where the responsibility for the delay does not lie with the offender. Your counsel in her written submissions referred the court to the case of Arthars[16] as standing for the principle that delay solely attributable to the fact of an offender exercising their right to contest criminal charges, will never be considered the 'fault' of the offender for the purposes of considering the effect of the delay on them and the extent to which delay is mitigatory. See paragraph 45 of the submissions, which footnote paragraph [27] of the decision of Arthars.
[16]Arthars v The Queen [2013] VSCA 258; 39 VR 613
87Paragraphs 28-30 of that very same decision then clarify and explain that proposition and the extent to which the weight given to the unfairness limb of delay might be affected by the extent to which an accused had any control over the length of the delay.
88I must consider the delay in this case and for that reason, I must descend to a bit more detail as to what has transpired in this case, despite my earlier statement as to the lack of profit in generally conducting an audit. I do this only as your counsel took me through the chronology in great detail. I note that a delay does not have to be inordinate or unreasonable to engage these principles, but of course the unfairness limb is far more directly engaged in a setting where there has been a delay that has been outside the control of the accused, for instance, in a setting where there has been an unduly leisurely approach adopted by the police or by the prosecution agency.
89One thing really should not be misunderstood; the fact that much time has passed since the offending is irrelevant to my assessment of the objective gravity and of the extent of your culpability. Delay does not reduce your culpability.
90I am dealing with you many years after these crimes were committed. That is very common. It is not easy for anyone involved in the case, for you or your family or the victims or their families for that matter. The fact is of course you wanted these allegations never to see the light of day. When Ms Meyer' allegations came to light, as I said, you offended against her again within days of the first police interview and then gave a false account to the police in the second interview of her providing reasons to you, as to why she had earlier falsely accused you. It was a pretty wicked account actually when one thinks about it. It is not an aggravating feature. But you were making full denials and manufacturing a reason in an endeavour to discredit her. She was 15 and she thought you cared for her. She did not want to get you into trouble. I do not know why your counsel refers to the gap between the 2013 interview and the third police interview in 2019, as it can hardly be said that you were on tenterhooks in that period or that there was any undue delay at all. It arose owing to the nature of the offence and the relationship between you the offender and victim. In other instances, the circumstances of the offending also had a role to play, either a young client mortified by touching in the course of a haircut in a salon or an employee who had been touched by her boss.

91As I have said earlier, you left behind you a trail of wreckage and just got on with your life. You never wanted any of these matters to surface obviously enough. When they did, you denied them, as was your right. So the delay between offending and being interviewed in late 2019, is not a matter of any great weight at all. That sort of delay is perfectly normal. I am not satisfied on the balance of probabilities of the existence of any anxiety or stress in that period. Of course, you get full credit for staying out of trouble in that lengthy period and since. That is a quite different issue and it touches upon your risk of reoffence and your prospects of rehabilitation.
92The gap between being interviewed in 2019 and then charged in 2020 and now, is in a different position to the gap between the offending and the interview. From the time of the November 2019 interview and when charged in late 2020, this matter has been awaiting finality and that has been some time coming. I was informed by the prosecutor without challenge that there was the need to take a number of statements from a variety of witnesses, including Ms Meyer and various complaint witnesses in that period. It was no easy investigation, with earlier statements of no complaint and the passage of time. There was some brief discussion this morning, and it is plain just from a perusal of the depositions, how many statements were taken in that period after interview, including a statement from Victoria Meyer and her mother Tonya[17] and from a range of complaint and other witnesses including her schoolfriends. Statements were taken from the parents of the Lynch girls and from a range of police members who had been involved in the earlier investigation back in 2013.
[17] A pseudonym
93I do accept, in this period since late 2019, and more directly since being charged in late 2020, that of course there has been a level of uncertainty in your life. There has been delay brought about by the committal process and the chronology that I have discussed relating to negotiations and the way the matters were separated, then the delay with the inability to bring the trial on last year. I have regard to that as well. That is completely outside of your control. It could not be easy to live your life with any sort of certainty in these periods. That is not to say it is any easier for the victims by the way. When you think about it, Ms Meyer and the others have been waiting half a lifetime for your crimes to be acknowledged. The choice was made to conduct a committal. Well that was your choice, but it was also your right. I noted already that you had offered to plead in relation to the five girls prior to the committal. You had made no offer at all in relation to the second incident against Ms Meyer until September of last year, but she had been included in the earlier offer in terms of the representative or rolled up charge relating to the request that she touch you. Then the matter, when it went to trial, was not reached at trial. That was not your fault. It is a shame that your offer was not then accepted as the plea could probably have been conducted either late last year or perhaps in the first few months of this year. Your counsel referred to a number of cases dealing with delay. Some of those cases deal with the need for the court to recognise and strongly disapprove of an unduly leisurely approach to the investigation or prosecution of a matter and give a heightened weight to the unfairness limb. That is really not the position in this case. The major delay is a product of the style of offence you have committed and to your response to it when interviewed in the case of Ms Meyer and as to the investigation when it gathered momentum in 2019 and you were interviewed. There is no reason for me to think that the police or the prosecution have sat idly on their hands. It was a complex investigation with previous allegations and interviews.
94Once charged in October 2020, the matter has proceeded to committal after a number of mention listings. The committal was conducted in October 2021 by which time COVID had struck. There were a number of listings in this court where resolution was being discussed. Again, there is no basis for me to conclude that there has been an unduly leisurely approach adopted by the investigators or by the prosecution. Nor though have you been doing anything to deliberately slow down the process as a matter of strategy, as sometimes takes place. That much is plain. I have already indicated it is a shame your offer was not accepted last September. I do take that into account. So there is a mixture here, with some events you had some control over, but many that were completely outside your control. So not being reached in the trial list, not having your September 2022 offer accepted until February and I accept all of this in a setting where you had been actively seeking to resolve the matter from early on. The reality is, until an offer was on the table in relation to the post police interview incident with Victoria Meyer, the matter really could not settle. Then you made that offer and then it really should have settled.
95I do accept there is a sizeable enough delay here. I do accept it cannot have been easy for you to get on with your life in that period since being interviewed and also from the date of being charged. I do not accept the unfairness spoken of in the submissions or the suggestion of the delay being 'inordinate’ in the way that that term is employed. It is what it is and the explanations for it are before me. It is not unexplained. However, undoubtedly, the case has been over your head and that has not been easy. Importantly, in the period of the delay since 2020 when the matter has been before the courts and in fact, in the many years before from 2013, you have stayed out of trouble.
96I do have regard to both limbs of delay: they do have a mitigatory role to play here. So it is the stress and anxiety of having the matter over your head when charged, and the fact that in the lengthy period since late 2013, you have remained out of trouble if we put to one side the SORA breaches which of course I do. There is also the issue of the uncertainty having been interviewed in 2019. All of these things assist me in terms of making judgments as to the risk of reoffending and your prospects of rehabilitation in your case. I am referring to the gap in offending and that is of great importance in Ms Lechner’s risk assessment and in her conclusions as to your being in remission.
97Well I mentioned earlier that it is not a profitable exercise for a judge to conduct an audit as to the reasons for a delay and I have probably just demonstrated how truthful that statement is by then engaging in the exercise.
98But having engaged in it, as I felt I had to given the prominence given to it on the plea, I return to the general proposition which is undoubtedly correct: What is far more important is the impact of any delay and the steps taken to rehabilitate in the period of the delay, not the reasons or the responsibility. I do not ignore the delay in this case. There is mitigatory value obviously enough. I just do not accept that delay is as powerful a consideration as is raised in the submissions placed before me. Your counsel at one point seemed to be taking almost a mathematical approach. Pointing to the delay in this case or that case and what was said by a court of that delay in that other case and then measuring the duration of delay in your case and then applying everything that had been said in another case to yours. That is not a valid approach.
99A court will always engage in some examination of the reasons for the delay and consider the effect of it as well as the steps taken along the road to rehabilitation or otherwise, in the course of the delay. I must consider your case. I must apply the law as it is to my assessment of the mitigatory value of the delay in this case. Some of the cases in this area involve very extreme examples. This one really does not. I do, however, give weight to each limb of delay.
Rehabilitation
100I turn to consider your prospects of rehabilitation. I have a 49-year-old man with no formal prior criminal history. Your counsel relies upon your past good character. There is the reference to good character in the written references and in the written submissions. See page 7. Your lack of prior criminal convictions is a matter of fact. However, the matters I am dealing with relate to multiple victims spanning a period of around a decade in your life when you were 27 or 28 to 39 years of age. You were plainly not of good character over a sizable enough time frame. The offending I am dealing with was not isolated. It was at times brazen. I have been informed of the offending against these two other children covered by the 2017 proceedings.
101I do have your failure on two occasions to comply with your obligations under the Sex Offender Registration Act, but that really does not inform my task at all, given the nature of those breaches and the matters I am dealing with. I put those two matters aside. I have your troubling ongoing failure to really acknowledge or account for the offending, notwithstanding your guilty plea. There is still plainly a process of minimisation. I believe there is really only quite limited remorse here. Plainly, you had an attraction to young females and a preparedness to act on it and that really is not in any way sensibly explained. You have though remained out of trouble since 2013. You have altered the way you deal with members of the public in the salon. You do not perform female haircuts. You work in the male barber section of the shop. Other measures have been adopted, including CCTV cameras and I have a statement from Ms Walmsley about the way you conduct yourself within the salon.
102I have the material in the references touching upon other favourable aspects of your background and personality. So matters in the references including your past charitable efforts. You are a family man with three children and a business. You have no issues with illegal drugs or any serious mental health issues and in that sense, you have none of the issues which so often impede the rehabilitation of an offender. I have also of course, Ms Lechner’s opinion as to the low risk of reoffence which I act on. You completed the community corrections order that was imposed in 2017.
103What then do I make of your prospects of rehabilitation? Well I have some reservations owing to the fact of the lengthy period of the offending, your age at the time, the age or position of the multiple victims and the brazen nature of the touching. There are limits to your remorse which I have spoken of and some minimisation of the offending. Nor as I understood your counsel’s submission, is there any legal impediment to prevent you from cutting the hair of female clients, be they children or teenagers. You have voluntarily desisted from doing so, as I understand it. Plainly, you should not be cutting any young females hair ever again. Plainly, you should have limited, if any contact with any young female apprentices or staff member. It would seem that the present arrangements to a degree deal with those situations. Ms Lechner says there is that low risk of sexual offending, but there is still a risk. Of course there is, there is always a risk.
104These things in combination cause me to rate your prospects less favourably than your counsel submits I should, but I still rate them quite favourably. Ultimately, I am prepared to accept that there are favourable prospects of rehabilitation in this case.
Increased Burden
105I move then to the suggestion increased burden felt by you in the event that you are imprisoned.
106Ms Roodenburg argued that if imprisoned, you would suffer an increased burden of imprisonment. She pointed to your anguished position in terms of your wife and your children’s predicament, as well as the very understandable concerns that you would have as to Ms Walmsley and her predicament and the survival of the business. A far lesser issue was the recognised increased prison burden posed by the prison authorities response to the global pandemic. Ms Roodenburg recognised that the effects of the pandemic had lessened, but there were still some impacts upon prisoners. These various matters were covered in detail in her written submissions at paragraph 37 and paragraphs 46-50. Your wife’s reference deals with some of her concerns for the future and of course, they are perfectly understandable.
107So essentially, your counsel was raising the impacts likely to befall your wife and your children, in the event of your being sent to prison. As I said a moment ago, your wife's concerns are perfectly understandable and one can have only sympathy for her and their position, but the case law in this area says that it is only in exceptional circumstances that third party or family hardship can be taken into account by a court. Proof of actual hardship is not enough and of course, that is because there is almost always actual hardship, often very significant hardship, when a person with a dependent family is sent to prison. It is very common for that to occur.
108As I say, the circumstances must be such that they rise above the general and sometimes significant hardship commonly suffered by families upon the imprisonment of a family member.
109Ms Roodenburg conceded that this case did not rise to that high level and she was plainly right to make that concession. It is almost inevitable that imprisoning a person will have an adverse effect upon others. It would here, there could be no doubt on that score at all, of course it would.
110However, I cannot take into account the impact upon your family.
111For the same reasons, I cannot take the possible impacts upon the business into account. Further in that case, it is actually not even clear what the likely impacts would be. You obviously are a significant contributor to the success of the business as Ms Walmsley’s letter makes clear. This day has been approaching for a long time and presumably you and Ms Walmsley have had some capacity to plan for all eventualities. Mr Roodenburg conceded that it was hard to know exactly what would happen on the business front in your absence. Only time would tell.
112I do however have no reason to doubt that if you were to be imprisoned, you would be deeply worried about your wife and your children's predicament. You would worry about their financial and emotional wellbeing. As to the business, I have no reason to doubt that you would be concerned as to the invidious position of your partner Ms Walmsley and the ongoing viability of the business in your absence.
113I do accept your counsel’s submissions that these things would increase the burden of imprisonment felt by you, should you be imprisoned. Indeed, I would not need Ms Lechner’s opinion on that score to reach that conclusion, but I have it. See Ms Lechner's report, page 9, point 5.
114Well it is permissible for me to take these things into account in the way I have described, in the absence of exceptional circumstances. That is because they are not going to third party hardship, but rather, are relied upon as increasing your burden of imprisonment. Prison would be hard enough for you as a first time prisoner. It would be harder still for you as a result of these matters I have mentioned.
COVID-19 increased burden
115The issue of COVID-19 and its impact upon you should you be imprisoned is a less significant matter as was conceded by Ms Roodenburg. See paragraph 37. That was owing to the relaxation in restrictions. It would be a very different thing indeed had you been in custody for the last few years where you would have been subjected to the very much restricted regimes in place, with significant periods where there were no personal visits and suspensions of courses and frequent lockdowns. I have had no difficulty in accepting that the COVID-19 virus and the response by those who run the prisons, has increased a prisoner's burden of imprisonment. That is a general statement. The extent of the impact must be assessed on a case-by-case basis.
116Well you have not been in prison, so there is no point focussing on the past impacts. There have been none for you. Your counsel recognises the relaxation of the restrictions and the better position that prisoners find themselves in accordingly. Visits have resumed quite some time ago now and so too, various courses and programs. It is reasonable to think that there might be the occasional lockdowns referred to in your counsel’s submissions and when they do occur, plainly those sorts of things do increase the burden of custody. I take that into account. As to what if any COVID-19 impacts actually lie ahead in the future for you if imprisoned, well that is impossible for me to know and I am not free to guess in relation to that.
General
117I turn then to some general matters. I am required to take into account a large range of matters in exercising my discretion. They include matters such as the maximum penalty as well as the nature, gravity, and the impact of any crimes committed by you.
118As to the offences themselves, your counsel conceded that this was serious offending. She conceded that any sexual offending against children was serious, and I have a number of child victims here. Where I am not dealing with a child victim, I have a young female employee. Now insofar as the offending against Ms Stanley specifies that she was under your care, supervision or authority, and no doubt that is because of your being her employer, I must not doubly count that employment and breach of trust as an aggravating factor. It is built into the offence. In fact, it is why it is an offence in relation to a 17 year old girl. It is very different for Ms Marsh or Ms Meyer. An aggravating feature in their case is your relationship with them. You were their boss and you were offending against them in their workplace. Of course, the employment had ceased for the second charge in relation to Ms Meyer, but it was not a distant relationship.
119Ms Roodenburg worked her way through what she said were the maters of objective gravity in this case, in paragraphs 4-7 of her written submissions. I will not trawl my way through those submissions, as to do so would simply involve me restating the physical acts that were described. It is true that the instances of touching were on the whole, relatively brief or even fleeting, though there were some exceptions to that. It was often incredibly brazen. It was mostly over the clothes. There was a significant age difference and you were being paid to cut the hair of the Lynch girls. Though the touching was mostly on top of the clothing, it was targeting intimate areas, the breasts, cupping of the genital region, even touching on the underpants above the vagina. It is not just a matter though of looking at the actual touching, the physical act. It is the whole setting. Yes, of course some of the touching was fleeting enough, well that was because you were using the opportunities presented to you by being a hairdresser, to surreptitiously indecently touch young girls as they sat in the chair in their school dresses, on one occasion touching a victim who came to visit when their mother was having a haircut.
120I have said already, the touching of Ms Stanley involved touching her stockings above her vagina, on her breast and rubbing your erect penis onto her bottom as she stood in the kitchen of her workplace. You requested Victoria Meyer, this is your young 15-year-old employee, to rub your penis and she did so on two occasions over your clothes. The touching on the second occasion is conceded to be the most serious offence as across the two incidents, this is Charge 2 on the second indictment. It really is a matter of some aggravation that having been arrested and interviewed, you then arranged for that same girl to come alone to the salon. That was the setting of Charge 2 on the second indictment and that touching, was unmistakably serious purely in terms of the physical act, skin on skin touching onto the vagina of a 15-year-old girl. A girl you knew you had been arrested in relation to days before. That instance of indecent act is certainly not a lower-level example of the crime and nor was your counsel suggesting it was.

121Given the setting of the various other charges, they certainly do not fall at the lowest level and again, nor did your counsel suggest that they did.
122I have already said, it is not as simple as just examining the touching in a vacuum. The setting cannot be hived off, nor which part of the body you touched, nor the age of the girl, nor your age, nor your position, nor your breach of trust unless already counted in the particulars of the offence (i.e. Charge 5), nor the impact.
123The context is critical to any sensible assessment of the seriousness of the offending here. The breach of trust where it arises, is a serious aggravating feature as was conceded.
124Now Ms Roodenburg was not, in making any of these submissions, in any way suggesting that any of the offending was minor or not serious. She conceded the seriousness of offending. Rather, she was endeavouring to make a submission as to the nature and the gravity of the various instances of these offences and that was because the court is required to take into account the nature and gravity of an offence. So it is not unusual to have these submissions made, which seek to place the instant offence before the court somewhere on some spectrum of offence seriousness. To see, if you like, where it ranks as against other examples of the offence.
125There are a range of different touchings. They are all different. I accept the offending on the five charge indictment is less serious than the second charge on the second indictment. Ms Roodenburg’s written submissions at paragraph 65 seemed not to make any distinction, but she plainly conceded the seriousness of that second charge relating to Ms Meyer in her oral presentation of the plea and correctly so.
126Yes, of course a victim could be younger. Yes, there could be force. Yes, there could be more sustained touching. Yes, there could be touching skin to skin, there could be all sorts of things. One can always imagine a worse example of any crime. Well, my task is to deal with these crimes and the aggravating features that do exist.
127I am dealing with crimes of indecent act or indecent assault and such offences necessarily will never involve the more serious sexual acts which might be envisaged, for instance, any act involving sexual penetration. So the skin on skin touching of Ms Meyer with fingers onto her vagina in an upstairs room alone with a person who had been arrested and interviewed in relation to previous crimes against the very same victim, how is that not a relatively serious example of the crime? After all, indecent act cannot include penetrative acts. What other more intimate area might be touched? And of course, it was far more than just the physical act.
128Many of these charges are rolled up charges, so charges that embrace multiple acts. Where rolled up, I am sentencing for the charged conduct actually rolled into the charge. Sometimes there is a decent gap between the rolled-up acts. They are not acts running into each other in the way that Ms Stanley’s were. Some charges have uncharged/context materials associated with them. I have already mentioned the approach that I take consistent with the case law that I cited earlier. You do not fall to be sentenced by me for those uncharged acts and they must not increase the given sentence for the charged conduct, but they go to the context and the absence of any suggestion that could be made as to the act being isolated.
129I also have the impact of the crimes, which as I have said earlier, is something that I must take into account. One can see in Vicki Lynch’ impact statement, the very sizeable impact that has flowed, even to one who arguably has sustained what is said to be a lower-level touching. Context is critical here and it really cannot be ousted from any sensible consideration of the offending. To do so would be to consider a totally different offence against a different person in a totally different setting. Well I must not do that. She was 14 or 15. That was the setting, her getting a haircut, but getting far more than she or her parents bargained for.
130I have mentioned already, that in reaching the appropriate sentences in this matter, I am required to consider a number of matters, including the nature and the gravity of offending, the impact of the crimes and the maximum penalties. But I must also consider the various purposes of sentencing. Rehabilitation is one of the purposes of sentencing. I do not ignore that purpose. I give it weight, but, it is only one of the purposes of sentencing. There are many other purposes. If all a judge in my position had to do was to consider the rehabilitative needs of the person sitting in the dock, then sentencing would be a very simple exercise. It is not, because there are many other purposes of sentencing which must be adequately reflected. Things such as punishment, deterrence, denunciation and protection of the community.
131You must be punished justly and proportionately. Punishment is obviously an important purpose of sentencing for these crimes.
132I must also denounce your conduct. That is of real importance. This sexual offending targeted multiple victims and it must be strongly denounced. I do denounce it.
133I have mentioned the need for deterrence.
134I must consider the need to deter you from future offending. You might have heard that referred to on the plea as the principle of specific deterrence. Well specific deterrence has an obvious role to play here, given the nature of the offences, the age and the position of the victims and the persistence in the conduct with it spanning a significant enough chapter in your life. I mentioned already, I am not satisfied that there is fulsome remorse here. There is still ongoing minimisation on your part, whether deliberately or perhaps even as a product of the dissonance referred to by Ms Lechner. You will continue presumably to work in an industry which is the industry that brings you into contact with members of the public, as it did in this case.
135At this point, you have been voluntarily avoiding female clients. Now of course, over the sizable period since the last offence and the absence of any criminal conduct alleged in that lengthy period, I have the absence of any prior criminal history and I do not ignore that, but the reality of the chronology of offending placed before me is it spanned the period from 2002 to 2013, at a point when you were aged 27 or 28 to 39 years of age and though I say spanned, I am not suggesting it was continuous throughout the period. It was not. I also have the risk assessment of Ms Lechner. I have the fact also of the matter being out in the public domain and the deterrent effect upon you of having been exposed and brought before the courts and sentenced. This is not, however, a case where specific deterrence drops away to a point of being a negligible consideration, it is not. There can, however, be some moderation of this purpose owing to the lengthy offence free period, the risk assessment placed before me and the other matters which persuade me of your having generally favourable prospects into the future. I still must deter you. I cannot ignore the purpose.
136Then there is general deterrence. You heard your counsel concede that was an important purpose of sentencing. Plainly it is. This principle relates to the need to deter other likeminded offenders. It is an important purpose of sentencing for this sort of offending.
137The courts must send a loud message to other individuals in the community who might be minded to commit sexual offences against children or young females. Sexual offences against children are abhorrent and they must be actively discouraged by the sentences imposed by the courts. So too sexual offences against young females. A loud message must be sent to those who might consider engaging in the sort of conduct that you engaged in. General deterrence is an important sentencing consideration here.
138I must also consider the protection of the community from you. For the reasons I have announced a moment ago when dealing with the moderation of the weight given to specific deterrence in this case, the weight to give to community protection would also, ordinarily, be moderated.
139However, in the event that I come to deal with you as a serious sexual offender which I would if imprisoning you on at least three of these charges, for any charge where you were dealt with as a serious sexual offender, community protection is then legislatively elevated to being the principal purpose of sentencing. See s6D(a) of the Sentencing Act 1991. I must still though engage in a conventional assessment of the risk.
Current Sentencing Practice
140I must and I do take into account current sentencing practices. They are not a single controlling factor. Current sentencing practices is only one of a large range of matters which I am required to take into account. I have looked at the case of Cole[18] to which I was referred by your counsel. Well it was an example of a sentence following a trial, a sentence said by the Court of Appeal in 2015, to be manifestly excessive. It is not a comparable case. There was a single victim. There was the absence of any other offending prior to or subsequent, said to be a matter of significance. So too the complete reordering of the accused man’s life with a new family and child and attendance upon parenting courses and other things he had attended to by way of ongoing rehabilitation.
[18]Cole (a pseudonym) v The Queen [2015] VSCA 44
141The Court of Appeal spoke of the short-lived nature of the acts, acts that were less serious than many that I am dealing with. Those three acts were laid on a specific basis as I understand it. They must have been if it was a trial and with no history that I am aware of as to any broader context by way of uncharged conduct. So the three acts as described in paragraph 6-8 of the decision. Now it was touching by a stepfather in the family home. I am dealing with acts committed by a man who is dealing with members of the public or his staff. Nor is there any material touching upon the impact upon the girl. She seemed to have dealt pretty directly with the offender, kicking away or slapping away his hand. In any event, it is not necessary for me to somehow distinguish that case as though it is some binding sentencing precedent. It is no precedent at all and it says nothing really as to the nature of the sentences required in this case. It bears no relationship to this case. I do also seriously wonder whether a Court of Appeal in this day and age would place such weight on the short-lived nature of an act. Surely, the instant case, the case I am dealing with demonstrates the impact which can be caused by a fleeting or ‘short lived’ act. I have also looked at the Judicial College of Victoria sentencing manual for examples of sentences imposed for these various crimes.
142I have looked at the Judicial College of Victoria Sentencing Snapshot No.258 to which I was referred, as well as the online statistics. Ms Roodenburg saw fit to quote the percentage of people who, from the data in that snapshot, had received non-custodial sentences for the crime of indecent act with a child. Well the other side of the coin is the obvious one, that is the percentage of people who did receive prison sentences and for those who did, the spread of sentences.
143The fact is though, statistics have inherent limitations.
144There will always be differing, aggravating and mitigatory considerations. No two cases will ever be the same. There are almost always differing durations, differing impacts, differing ages of offenders and of victims and differing acts. Some charges are specific, some are rolled up, sometimes they are representative. There will be differing relationships, differing levels of remorse and insight, differing pleas. So those statistics tell me really nothing about the individual cases represented in the data.
145No amount of looking at statistics or even other sentencing outcomes in other cases, can ever provide the answer to the correct exercise of my discretion in this case.
146I dealt earlier with the submission made as to the gravity of the offending. I am sure one can always construct a more serious example of a hypothetical crime. It is easy. All crimes have differing aggravating features. Offenders have different backgrounds. One can almost always envisage a worse case of any crime, including crimes of indecent act with a child or indecent assault. But that is not the best way to judge the seriousness of the actual crimes before the court. That is because the absence of some aggravating features says very little indeed about the seriousness of the actual offences before the court, especially where the crimes before the court have their own aggravating features present, as these crimes plainly enough do. See the case of Harlow.[19]
[19]Harlow v The Queen [2017] VSCA 234
147This was plainly serious offending, that much is conceded. Plainly much of the conduct the subject of the first indictment falls at a relatively low level if looked at purely in terms of the physical acts. Some involved touching of the breast on the outside of the clothes for instance, but that omits from the consideration the actual context. It does not fall at the lowest level at all, when regard is paid to the context. Some of the conduct involved hands onto underwear above the vagina, the rubbing of an erect penis against a bottom, the cupping of the genital area. As to the second charge relating to Ms Meyer, your counsel was not suggesting that it fell at a low or lower level at all. It did not. There were features of aggravation there that I have spelt out more than once and it is in my view, a relatively serious example of indecent act. Now of course I have been focussing in this portion of my reasons on the crimes and an assessment of their gravity on matters of aggravation and where they might fall on the spectrum of offence seriousness. But of course, I must take into account the many matters in mitigation in this case.
148I said at the outset, your counsel was urging the court to impose a community corrections order on each indictment, so standalone community corrections orders without any imprisonment. Ms Roodenburg reminded me of the impact of the Court of Appeal decision of Boulton[20] and the fact that a community corrections order can, in some circumstances, achieve all the purposes of sentencing. I need no reminding of the scope of that case. I am familiar with it and it has been cited to me consistently over the years. I have no doubt at all that a community corrections order can achieve the purposes of sentencing in some cases. It will always though depend on the circumstances of the crime and the offender and the weight that has to be given to the various purposes of sentencing. So your counsel was arguing for a suitably conditioned community corrections order in relation to all the charges before me. Failing that, if a term of imprisonment was required, she argued that it could be imposed in relation to the five charge indictment and then be wholly suspended and a community corrections order could be imposed for the second indictment given that those offences had occurred after the abolition of suspended sentences in 2013. I have already spoken of the strangeness of such an outcome with a lesser disposition imposed on the most serious of the charges by far, which is Charge 2 on the second indictment.
[20] Boulton v The Queen [2014] VSCA 342; 46 VR 308
149The prosecution did not, however, challenge the availability of a standalone community corrections order in this case, in relation to both indictments. They said that a community corrections order was open to me. This was a submission made on behalf of the Director of Public Prosecutions of this State. Frankly, it was a startling submission in the circumstances of this case.
150Prison is a disposition of last resort. If I thought a standalone community corrections order could achieve the various purposes of sentencing in this case, then I would be obliged to proceed in such a way. The provisions of the Sentencing Act prohibit the imposition of a more onerous disposition that is required to meet the various purposes of sentencing. Well that makes good sense. Prison genuinely is a disposition of last resort. If it can be avoided, it must be. That is the law.
151But sentencing does not involve me delegating my powers and responsibilities and duties to the Director of Public Prosecutions or to defence counsel. I am not bound by submissions made by either party as to the range of available sentences in a given case. The fact that they join in a submission does not alter that position, though of course one would always reflect very carefully when met with such a submission. It is not something I ignore. The fact is though, there have been plenty of occasions over the years where the Crown has placed before me sentencing submissions, which I have rejected, submissions in each direction. I have submissions made on behalf of the Director conceding the availability of non-custodial outcome, which I have rejected. I have had submissions made on behalf of the Director calling for a prison term, which I have also rejected. It simply demonstrates that the appropriate sentence is not arrived at by some agreement reached between the parties or by a particular submission made by one party or the other or even by both. I am the person passing sentence and I must pass a sentence according to law.
152As to the submission made on behalf of the Director as to the availability of a standalone community corrections order in this case, I entirely reject that submission. Such a disposition is plainly not open to me in the sound exercise of my discretion.
153It is abundantly plain to me that a standalone community corrections order in this case could not possibly achieve the various purposes of sentencing in this case. The offending is just too serious. A standalone community corrections order on each indictment would be entirely inadequate. The secondary submission as to a suspended sentence on the first indictment and a community corrections order on the second, is likewise entirely inadequate. It is very clear to me that a sizeable prison term is demanded by the most serious charge, which is Charge 2 on the second indictment. This being the charge relating to the ‘post interview’ indecent act upon Ms Meyer. That sentencing outcome would in reality foreclose any sensible consideration of a community corrections order on any of the other charges in any event, as it is clear that you must actually serve a term of imprisonment on that charge. There is no power to suspend wholly or in part. It is obvious given the dimensions of the sentence required on that charge, that you would not be free to engage in any community corrections order. There is no pre-sentence detention to call upon in this case, so no s18 declaration.
154Quite aside from that though, it is clear to me that prison sentences are required in relation to each charge before me on each indictment. Again, the offending is just too serious and any lesser disposition would not achieve the purposes of sentencing. A stand-alone community corrections order even if it could be imposed and you were free to serve it, would be in my view, a derisory outcome for what is undoubtedly serious sexual offending in relation to each of the multiple victims. Such an outcome would pay inadequate regard to general deterrence, punishment, and denunciation. The message conveyed by a standalone community corrections order across these two indictments would be entirely the wrong message to potential likeminded offenders. So it is my judgement that prison terms are required in relation to each charge on each indictment.

155I have mentioned that suspended sentences were abolished some years ago. They are still though available, as a possible outcome for the five charges on the first indictment. That is only though if a court is satisfied it is desirable to do so (that is, to suspend) in the circumstances. So only if the previously enacted Sentencing Act s27 provisions are met. I have already said I cannot suspend any prison sentence imposed in relation to the second indictment. The law prohibits such a course given the commission date of those two offences against Ms Meyer.
156Well I have considered the provisions of the Sentencing Act (s27 of that Act as it was) and whether it is desirable to suspend any of the sentences imposed on the five charge indictment.
157I do not believe it is desirable to suspend either wholly or in part, those sentences imposed on the first indictment. Such an outcome would pay inadequate regard to the need to denounce, punish and deter. It would pay inadequate regard to the gravity of the offending and the impact for that matter.
Totality
158I take into account the principle of totality of sentence. I have engaged in a last look at the sentences imposed by the court and the total effect of them, in endeavouring to guard against the imposition of a crushing sentence upon you, and to ensure that the overall effect is commensurate with your overall criminality. Your criminality was high.
159I have the serious offender provisions within the Sentencing Act. I mentioned those earlier. They will come into play for every sentence I am about to impose from the third sentence. The ramifications of those provisions is that for any sentence where you are sentenced as a serious sexual offender, pursuant to
s6D(b) of that Act, I may impose a disproportionate sentence to achieve that goal. I make clear I will not be doing that in this case.
160Those provisions also require me to treat the protection of the community as the principal purpose of sentencing for those matters where you are to be sentenced as a serious sexual offender.
161Further, in the absence of a direction otherwise, for any sentence imposed where you are a serious sexual offender, the sentences would be served cumulatively upon each other (that is to say, consecutively) as the presumption of concurrency is deliberately removed. Totality is modified by these provisions, but it is still an important consideration in my task. Given the time frame of the matters dealt with in 2017, that is the commission date of the matters dealt with in 2017, I pay some regard to that sentencing outcome imposed back in 2017.
162I do not ignore the serious sexual offender provisions. I must not ignore them, but what sentence is required to protect the community will necessarily depend upon my assessment of the risks that you present (see R v RNT[21]). I have mentioned already the low risk assessment of Ms Lechner.
[21][2009] VSCA 137 at [16]
163I am dealing with six quite separate victims. Some of these are rolled up charges, some not. The second indictment relating to Victoria involves a relatively confined time frame. For the other victims, I have differing time frames. There is really no strong link, other than your ongoing insidious indecent touching. Each victim has been touched differently; no doubt each impact is an individual thing. Well there is a need to recognise each individual victim and not render them meaningless statistics. They are not. Quite independent of the serious offender provisions and s6E, there would be a need for a level of cumulation here. They were each serious separate criminal acts on separate victims. I will moderate the level of cumulation as a result of a need to consider totality of sentence.
164I will have you remain seated because my passing sentence will take quite some time. It will be, I am sure, confusing to you, as well as to others, as I move, as I must from charge to charge and then from one indictment to another. I have no doubt you will lose track of the numbers and what they will mean and the extent of concurrency or cumulation. I will explain the structure of the sentence and the intended total effective sentence towards the end of this process.
165Let me deal then pass the individual sentences at this point. I am sorry to have taken so long to get to this point.
First Indictment number L12644493.A1

166On Charge 1, which is a rolled up charge of indecent act relating to
Vicki Lynch, I convict and sentence you to nine months' imprisonment.
167On Charge 2, indecent assault of Jane Marsh, I convict and sentence you to five months imprisonment.
168From this point, you fall to be sentenced as a serious sexual offender.
169On Charge 3, which is a rolled up charge of indecent act upon Krystal Lynch, you are convicted and sentenced to nine months' imprisonment.
170On Charge 4, a rolled up charge of indecent act upon Nellie Lynch, I convict and sentence you to 10 months' imprisonment.
171On Charge 5, a rolled up indecent act with Cindy Stanley, a child aged 16 or 17 under your care, supervision or authority, you are convicted and sentenced to nine months imprisonment.,
172The base sentence on this indictment is the sentence imposed on Charge 4 relating to Nellie.
Cumulation on that indictment.
173I direct that two months of the sentence imposed on Charge 2 and three months of the sentences imposed on each of Charges 1, 3 and 5, is to be served cumulatively upon the base sentence and each other.
Total Effective Sentence on Indictment No. 12644493.A1
174This produces a total effective sentence on that indictment of 21 months imprisonment.
Indictment number L 12644493.3
175I move to the second indictment relating to Victoria Meyer.
·On Charge 1, a rolled up indecent act charge relating to Victoria Meyer, I convict and sentence you to nine months imprisonment
·On Charge 2, indecent act upon Victoria Meyer following the first police interview, I convict and sentence you to 22 months imprisonment.

176The base sentence is therefore 22 months .
177I direct that two months of the sentence imposed on Charge 1 is to be served cumulatively upon the base.
Total Effective Sentence on second indictment
178The total effective sentence therefore on that indictment is 24 months.
Cumulation between the two indictments (Global Total Effective Sentence)
179I direct that 14 months of the total effective sentence imposed on the first indictment, Indictment L12644493.A1 is to be served cumulatively upon the total effective sentence on the second indictment. This results then in a global total effective sentence across both indictments of 38 months or three years and two months imprisonment.
Extent to which I otherwise direct concurrency (s6E)
180By pronouncing the various orders for cumulation in relation to each indictment charge, I have in reality set out the extent to which I otherwise direct concurrency under the provisions of s6E of the Sentencing Act where that arises.
Non-Parole Period
181Subject to a couple of exceptions which have no application in this case, when a court passes a sentence of two years or more, which I have, I am required by law to fix a non-parole period. So I must fix a non-parole period and it is a single non-parole period in relation to that global total effective sentence arrived at between those two indictments. I must make no assumptions as to whether or not you will be released on parole. In fact, I must not even consider that issue.
182I direct that you serve a period of 18 months before becoming eligible for release on parole.
Section 6AAA
183I have taken into account your guilty plea, Mr Gugliucciello. If you had pleaded not guilty and been found guilty of these offences, I would have sent you to prison for five and a half years. I would have fixed a non‑parole period of four years in that setting. That declaration under the provisions of s6AAA of the Sentencing Act must be entered into the records of the court.
Serious Offender Status on Charge 3,4,5 and 1 and 2 on .3 indictment.
184I have sentenced you as a serious sexual offender in relation to Charge 3, 4 and 5 on the first indictment and on Charges 1 and 2 on the second indictment.
185In each case, your status as a serious sexual offender must be entered into the records of the court.
Section 18 Declaration
186You have spent no time in custody so there is no s18 declaration to make in this case.
Sex Offenders Registration Act 2004
187Finally, I have to tell you now about your new obligation under the Sex Offenders Registration Act 2004. You have been sentenced by me today in relation to a number of Category 2 offences and it is agreed that you must now comply and continue to comply with your reporting and various other obligations under that Act for an increased period. Previously it was eight years arising from the 2017 convictions. Well that period has increased and your obligations are to comply with your reporting and other obligations under that Act for the remainder of your life.
188I will have handed to you in a moment a lengthy document. You have seen one of these before and it explains all your obligations under that Act. It details your reporting requirements. There are lots of other things that are spelt out, including things you must not do and things you must do. There are prohibitions upon gaining any employment in any child-related activity. There are requirements to report any communication or contact with children. It would take me a significant period to go through them and explain them, I do not need to, it is not my purpose at this stage. You will need to familiarize yourself with these conditions again. What I am going to do is have you sign a form purely to acknowledge receipt of those materials and then what you will need to do is to familiarize yourself with those obligations and comply when they arise.
189Ms Roodenburg, you have seen these before, they are extremely detailed. He has seen one before as well. I am not expecting him to be sitting down there reading them all now. It is for him to simply acknowledge receipt of the documents. So I might have you go down to him in a second and have him sign at the appropriate point, just to acknowledge receipt of it, if you would do that.
190MS ROODENBURG: Yes, Your Honour.
191HIS HONOUR: Yes, I will have that happen now. Thank you.
192MS ROODENBURG: Thank you, Your Honour.
193HIS HONOUR: Yes, thank you. Well that has been acknowledged by signature. Are there any other matters that I need to deal with, in terms firstly of my sentence and I will come to other issues. Any other matters I need to deal with?
194MS ROODENBURG: No, Your Honour.
195MR PETRIC: No, Your Honour.
196HIS HONOUR: Are there any custody management directions you want me to make at all?
197MS ROODENBURG: Only that it is Mr Gugliucciello's first time in custody. No other issues to raise.
198HIS HONOUR: He will be seen by, at the very least, a nurse and - are there any - I mean you can provide such reports as you want to or such materials to the people in custody as you want. Are you wanting - I do not think there's any, particularly in Lechner's report that - - -
199MS ROODENBURG: No, I don't think so, Your Honour. Not in either of the reports.
200HIS HONOUR: Very well, so you do not want me to attach any of that material?
201MS ROODENBURG: No thank you, Your Honour.
202HIS HONOUR: So simply to state it is this man's first time in custody, please take all care I think. Anything else from your perspective?
203MS ROODENBURG: No, no Your Honour.
204HIS HONOUR: No, and the Crown?
205MR PETRIC: No, Your Honour.
206HIS HONOUR: No, well that completes the matter. I will be in a position in due course to revise these reasons, they are very lengthy and it will take a bit of time to get them back from VGRS. Once they are revised, I will anonymise them in terms of the references to the names of the victims or any material that might tend to identify them and once that has been done, I will make them available to the parties, but that will take a little bit of time. I will revise them as soon as I get them, but it will take a bit of time to get them back.
207Very well, so I will have Mr Gugliucciello removed at this stage. Yes all right, well that completes the matter then, there is nothing in the reserve list so I will adjourn the court then until Monday at 9.30. Thank you each of you, or you Ms Roodenburg I should say for your assistance on the plea, yes.

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[2023] VCC 779

12 May 2023