Director of Public Prosecutions v Harder
[2015] VCC 1461
•8 October 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-01107
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GRAEME KEITH HARDER |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 October 2015 | |
DATE OF SENTENCE: | 8 October 2015 | |
CASE MAY BE CITED AS: | DPP v HARDER | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1461 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S. Borg | |
| For the Accused | Mr P. Morrissey QC |
HIS HONOUR:
1 Graeme Keith Harder, on 1 October 2015 you pleaded guilty to the following charges in this court:
2 Charge 1 and 2 were charges of sexual penetration of a child between the ages of 10 and 16 years who was under your care, supervision and authority. Each of these charges has a maximum penalty of 15 years' imprisonment.
3 Charges 3 to 12 inclusive were charges of sexual penetration of a child between the age of 16 and 18 who was under your care, supervision and authority. Each of these charges has a maximum penalty of three years' imprisonment.
4 At the commencement of the plea the prosecutor tendered and read a “Summary of Prosecution Opening”. It was Exhibit A on the plea. It properly sets out the circumstances and background of your offending and I will now refer to it.
5 I will refer to your victim in this case as RAC. RAC is the complainant and was born in June 1975. The period of offending was between 1 April 1991 and 4 August 1991, a period of four months. The complainant was 15 to 16 years old at the time of the offending. The complainant had been a secondary school student from 1988, which was year 7, until 1993, year 12. He is now 40 years of ago.
6 You were born on 28 December 1954. At the time of your offending you were 37 years old. You were a teacher at Ivanhoe Grammar School between November 1978 and at the time of the arrest on 4 March 2015. You are now 60 years of age. At the time of the offending there was a 21 year difference between the age of yourself and your victim.
7 The complainant met you in December 1989, when he was then in year 8, in the preparation for a school bike trip which was scheduled to take place in January of 1990. You were the Year 9 level Master and the teacher at the school who had organised the school bike trip. The complainant was in year 9, aged 14 years old, at the time the bike trip was scheduled. The complainant went on the bike trip and there were no issues. He got to know you and describes your relationship with him as a normal teacher/student relationship.
8 In 1990, you remained the Master of the Year 9’s and the complainant moved into your Year 9 level. He was given the position of a ‘locker monitor’. There were six students selected to do this job. You had a key to RAC’s locker, and would leave notes in his locker. The notes generally covered general conversation and the complainant would respond to the notes in person. The complainant kept the notes that you had left in his locker.
9 During that year the complainant attended a school trip for Year 9 boys to Queensland. The complainant described the trust level between himself and you increasing during this time. On that trip, you shared a tent with the complainant. At the end of the trip, you gave the complainant an album of photographs with an accompanying note as a memento of the trip.
10 You were an English teacher and the complainant recalls some of the letters were long and powerful, especially when you wrote about your feelings and emotions. The complainant recalls that the letters continued until the end of year 10 and to the beginning of year 11. You had given him a small tin chest that locked so he could secure the letters written to him by you.
11 The complainant also recalls finding a copy of some of the letters written by you to the complainant with papers from a Counsellor in Box Hill. The complainant knew that his mother had found these letters prior to him putting them in the tin chest and had consulted with a Counsellor. He then spoke to you about what he had found and you then came to the complainant's house, asked for the letters and burned them in an incinerator at his property.
12 Toward the end of year 10 and the beginning of year 11, you went to the complainant's house whilst his parents were out. You would then leave before they returned home.
13 You were also involved in scuba diving at the school. You were the dive instructor. You kept an air tank in your office and the complainant recalls he and other students being in your office and you letting them breath air from the tank. He recalls this as being fun.
14 You taught the complainant to scuba dive, first in the school pool and then on trips away with other students and sometimes overnight. The joint interest in scuba diving meant that the two of you spent even more time out of school together. Even though the complainant failed his medical because of his asthma, you still allowed him to dive. You got him to complete a dive diary and you would sign it as his dive buddy.
15 You also played squash regularly. You would drive the complainant to these events and drop him at home after. The complainant also participated in the school kayaking team and you would attend over weekends to watch him and often drove him home.
16 You also took the complainant on trips to Mount Gambier in South Australia for scuba diving. Other students, as well as older ex-students came along for the same trip. At that stage the complainant was 14 to 15 years old. You stayed in cabin accommodation with them. The complainant recalled drinking alcohol on these trips.
17 On one of the return trips from Mount Gambier you stopped for the night at the Grampians. Another student was not well so you suggested that the complainant share a double bed with you.
18 When the complainant started year 10, you moved up to the Year 10 level Master. The complainant recalls being given a master key which allowed him access to the whole school. The complainant used this key to meet you in a room under the middle school where all the scuba diving was stored.
19 The foregoing background outlines how you developed a trust and control over your victim, RAC. The following event sets out your gross breach of that trust.
20 I will deal first of all with Charges 1 and 2 which is sexual penetration of a child between the ages of 10 and 16 years. In April or May of 1991 you and the complainant went on a trip to Apollo Bay. You shared a cabin and you were alone there on the first night and shared a bed. In the morning, you woke up next to each other. Both had your pants on but no tops. You playfully touched each other's chest which progressed to removing your pants and the touching became more intimate. The complainant remembers kissing your chest and stomach.
21 The complainant then kissed your chest, stomach and penis a few times. You also kissed the complainant's chest, stomach and then his penis. On one occasion the complainant kissed your penis and then you inserted your penis into the complainant's mouth. That is the first charge of sexual penetration of a child between 10 and 16.
22 The complainant then sat and straddled you whilst you were lying on the bed. You then put your penis inside the complainant's anus. You moved your penis in and out of the complainant's anus and then withdrew and ejaculated on your own stomach. The complainant remembers that you were trying to be gentle and that you said to the complainant that what you had done was very normal in other countries. This was the first time that the complainant had sex. That is Charge 2, sexual penetration of a child between 10 and 16.
23 You lay on the bed for some time talking. When one of the older boys arrived and knocked on the door. You put on your pants and answered the door. The complainant recalls that your penis was still semi-erect when you answered that door.
24 That night you and the complainant walked to a nearby golf course. When you returned, you slept together again in the same bed. The next morning you showered together. The complainant described you as mucking around in the shower. That is, touching and slapping the complainant's penis in a muck around way.
25 From then, the complainant states that there was sexual activity between you on a regular basis which was about once a week.
26 The complainant recalls attending swimming training with you, you then being the swimming coach at the school. You would swim together in the school pool after school and when you finished you would then drive the complainant home, often giving him a chocolate bar after training.
27 Some of the notes left by you in the complainant's locker stated, "Let's go for a splash." The complainant knew this as, "let's meet in the scuba room and have sex."
28 He would use the master key that you had given him to get into that room whilst being careful not to be seen. You would be there waiting for him and placed wet suits on the ground to lie on. The complainant would straddle you and you would then put your penis in his anus. You would swim in the pool after sex. This occurred at least once a week.
29 Charge 3 is sexual penetration of a child between 16 and 18 years. Whilst in year 10 1991 the complainant recalled meeting you in the scuba room for sexual activity.
30 You put your penis in his anus but you did not ejaculate, that is Charge 3.
31 You then rolled over and the complainant was behind you. The complainant then put his penis into your anus. You said that it felt uncomfortable so the complainant stopped. That is Charge 4 of sexual penetration of a child between 16 and 18 years. You then rolled onto your back and the complainant masturbated your penis until you ejaculated onto your own stomach. That is referred to as an uncharged act in the opening.
32 A separate occasion is to do with a condom, the only time that one is used, it seems. On this occasion in the same year, the complainant recalled while in the scuba room you putting a condom on your penis which he said you rarely did. The complainant then straddled and you put your penis in his anus. That is Charge 5 of sexual penetration of a child between 16 and 18. You ejaculated into the condom and then threw it in a white bucket in the room which was used as a bin. The complainant recalls seeing a condom in the bucket the next time he was in there. He thought it was dangerous to leave it there.
33 On a further occasion the complainant recalled meeting you in the pump room during year 10 in 1991. You had put some dark blue towels on the ground to lie on. You lay on the towels and the complainant straddled you. You then put your penis in the complainant's anus. That's Charge 6, sexual penetration of a child between 16 and 18 years.
34 On another occasion in the pump room, the complainant recalled being there with you and you were kissing, a maintenance man opened the door and disturbed you both.
35 The complainant participated in the Duke of Edinburgh Award scheme through the school. Only the complainant and one other student participated in the award scheme and you told the boys that you were in charge of that scheme.
36 One of the activities was driving a vehicle. You would allow the complainant to drive your vehicle and you would supervise. On some of the drives you would go to your house in Eltham North. No-one else was home when you went there.
37 On one occasion the complainant recalls that when you were both alone and naked in your bedroom you went to the kitchen and returned with some cooking oil. You rubbed the oil all over your bodies and you laid down on some towels that you had placed on the bed. On that occasion you put your penis into his anus and had sex with him. That is Charge 7, sexual penetration of a child between 16 and 18 years.
38 On a further occasion at your home you were in the bedroom when you went and got some butter from the kitchen. The complainant asked you about it and you replied that you and your wife sometimes used butter during sex. You rubbed the butter over your bodies and you laid down on towels on the bed. You inserted your penis into the complainant's anus and had sex with him. That's Charge 8, penetration of a child between 16 and 18 years.
39 On another occasion at your home you took him into a small bathroom. You put your penis in the complainant's anus and had sex with him there. Afterwards the complainant and you had a shower before leaving. That is an uncharged act relating to activities at your home.
40 As the year 1991 progressed the complainant felt less excited about what he describes as the relationship with you. He felt he was trapped in an adult relationship without the skills or knowledge of how to get out of it. He likened the relationship to a marriage and the emotions being very intense. You had even told him that you loved him.
41 The complainant recalled on another occasion in late 1991 when you and he had been away. You were driving back to Melbourne along the Calder Freeway when you stopped the car under a bridge overpass. You made him have oral sex in the car and put your penis in the complainant's mouth. The complainant does not believe that you ejaculated on that occasion. The complainant remembered cars passing your stationary vehicle whilst this occurred and that he hated doing it as he had just had sex all weekend and all he wanted to do was go home. That's Charge 9, sexual penetration of a child between 16 and 18 years.
42 Also during late 1991 the complainant recalled going on a scuba diving trip to Portsea with you and other students. You drove down in your car and stayed the night at a Blairgowrie house which was owned by one of the student's parents. Once you arrived the other boys went for a walk and you and the complainant stayed in the house as the complainant felt sick with the flu. You then took the complainant into the laundry and although you knew that the complainant felt sick, you pulled down your pants and put your penis in the complainant mouth. You then ejaculated in his mouth which the complainant hated. That is Charge 10, sexual penetration of a child between 16 and 18 years.
43 Again in 1991 the complainant recalled being in the middle school campus with you. You took him to the first floor of the toilet/shower block. You removed the complainant's clothing and you were on the floor of the showers, the showers were turned on and the steam was exiting through the brick blocks to the outside. The complainant wondered why the shower was on as someone may see the steam. You got behind the complainant and put your penis in his anus and had sex with him. The complainant remembered that you had been quite forceful on that day. That was Charge 11, sexual penetration of a child between 16 and 18 years.
44 Also during late 1991 Ivanhoe Grammar participated in the Associated Grammar Schools swimming sports. You organised for the complainant to assist by filming the swimming event on a video camera.
45 After the event you drove the complainant home to Ivanhoe Grammar, you then had a swim in the school pool and drank champagne that you had bought. The complainant ended up drunk, you then took the complainant up to your office in the senior school to watch the video of the swimming of that day. You placed a blanket on the floor and lay on it, the complainant straddled and you put your penis in his anus and had sex with him. You withdrew your penis and ejaculated on your own stomach. The complainant then recalled being driven home by you and vomiting when he got home as he was intoxicated. That is Charge 12, sexual penetration of a child between 16 and 18 years.
46 The summary contains some further allegations of uncharged acts which do not form part of the sentencing process here.
47 Although others at Ivanhoe Grammar did not know the full extent of the relationship, the complainant was constantly teased during his school years because of the relationship with you. There were also occasions where the complainant's parents met with you and discussed the inappropriate relationship they believed that you were having with their son, not knowing the full extent of it.
48 It was during year 11 1992, that the complainant started dating a girl. His relationship with you slowed and by year 12 it had stopped. You were also no longer his level master at the school, so this created some distance between you.
49 In October 2014 the complainant contacted police and reported these matters. He provided a full statement to the investigators and handed to the police the tin chest used to store the letters from you, the photo album from the Queensland trip given to him by you and his scuba diving log book.
50 On 24 November 2014 the complainant made contact with you through an Internet site called LinkedIn and arranged a face-to-face meeting with you.
51 On 3 March 2015 the complainant and you met at the Old England Hotel in Heidelberg. The complainant wore a recording device during the meeting with you and recorded the conversation. This has been referred to as a pretext conversation. During the taped conversation between yourself and the complainant you said the following things:
52 (a) It was a relationship that grew steadily over time;
(b) That you had a strong affection for the complainant that never faded;
(c) Your only regret was if it had ruined anything for the complainant;
(d) That you had seemed to fall into the relationship;
(e) Never felt love for a person before or since, as in that love; a strong motivation was that your marriage was rocky;
(f) You had not done anything like that since. Your marriage had got back on track afterwards;
(g) That you were prepared to take your life if it got out, you hoped and prayed it would not get out;
(h) You spoke of the strong love you had for the complainant and that it never went away;
(i) You never felt like you abused or exploited the complainant, you felt that you had a really fantastic relationship and friendship with the complainant;
(j) Your relationship with the complainant was one of the high points of your life, it was an important and impassioned time for you.
(k) You described the complainant as being interesting and interested in things that you liked. You wanted to teach the complainant things that you were interested in.
(l) You admitted having been involved in cycling trips and diving and that it was a disappointment that the complainant had asthma.
(m) In the school 20 to 25 years ago the relationship would not have been on the radar of the other staff at the school.
(n) You never felt that you were abusing or exploiting the complainant and that was not the language of that day anyway.
(o) You had a really profound love for the complainant and it was still strong.
(p) You never allowed yourself to get into a relationship like that ever again and just focused on being a fine educator and a family man.
(q) You said that you hoped that the complainant will forgive you if you felt that your actions had betrayed their friendship
(r) A couple of times you had thought about what you would do if it came out and in the end you just reconciled yourself that that would be it and you would pull the pin.
(s) You said you were a brittle human being at the time and should have been more adult, more mature, stronger, more aware but you were not and that is history.
(t) That you were grateful that the complainant's parents were kind to you as they could have destroyed you overnight, but they did not, they supported you to do the right thing for the complainant's sake.
(u) That you had counselling after the complainant's parents became involved but did not tell the counsellor about the intimacy of your relationship with the complainant.
(v) The counselling did nothing for him
53 In the course of the pretext conversation you asked RAC if he was taping the conversation. RAC told you that he was not taping the conversation. You continued on with the conversation outlined above.
54 On 4 March 2015 you were arrested by police. You exercised your right to give a "no comment" record of interview to the police on that day, although you did acknowledge your position at the Ivanhoe Grammar School, knowing the complainant and meeting with him the day prior. You had started at Ivanhoe Grammar School in November 1978.
YOUR PERSONAL CIRCUMSTANCES
55 You are 60 years of age. Your father was a general practitioner in Shepparton, your mother devoted her energies to home making and raising three children, of whom you were the middle child. Your home life was happy, stable and a loving environment. You describe your family as “a model family”. Your parents are elderly and frail. You have been providing both of them with support and some assistance. Your education commenced at the local primary school in Shepparton, you started secondary education at Shepparton High School. At the beginning of year 9 you commenced further study as a boarder at Wesley College here in Melbourne. You had good friendship circles and were not the target of any bullying or harassment. After secondary education you studied Arts at Melbourne University and majored in humanities. You undertook teacher training and majored in History and English.
56 You commenced teaching at Ivanhoe Grammar School in November 1978 and remained there until you were charged with these offences in March 2015 when you resigned your position at the school. You have devoted your whole working life to Ivanhoe Grammar.
57 In your time at Ivanhoe Grammar you have held many positions of responsibility including Head of Outdoor Education, Head of Curriculum, Head of the Middle School, Head of the campus at Plenty and most recently you were the school Archivist.
58 You married your wife 1982. Your wife has supported you throughout these proceedings and charges. You have two children, a daughter aged 26 and a son, 23. Your family life has been stable for many years since the time of your offending.
59 You have no prior convictions. Since you have been charged you have attended upon Dr Matthew Barth for a Sex Offenders Treatment Program. Dr Barth prepared a report dated 28 September 2015 which was Exhibit 2 on the plea. You have completed eight treatments between 24 July 2015 and 25 September 2015. Dr Barth reports on what you describe as a deep affection for RAC. Dr Barth recommends that you continue to be treated for Sex Offenders Treatment Program to enhance your relapse prevention plan. Dr Barth identified your need for treatment for depressive symptoms. Dr Barth considers your ultimate rehabilitation prospects in the community to be positive.
60 Patrick Newton, forensic psychologist, examined you and prepared a report dated 26 September 2015, that is Exhibit 3. Dr Newton reports that you sought counselling when your contact with RAC came to a close in the early 1990s. You also reported significant emotional upheaval since the Black Saturday fires in 2009. As head of the Plenty Campus at the Ivanhoe Grammar School you were responsible for the support of family and staff members directly affected by those fires.
61 Since being charged in March 2015 you have been prescribed Endep for depression by your general practitioner. Dr Newton's opinion is that you suffer from recurrent episodes of intensive reactive depression which points to a more chronic vulnerability to depression but has its genesis in the problematic personality features. The features Dr Newton refers are that you are a dependent and socially awkward individual. You place a high premium on acceptance by others and avoid conflict or rejection in order to avoid intense anxiety. Dr Newton assesses you as a moderate to low risk of sexual recidivism.
62 I have noted the content of the five testimonials which were part of Exhibit 4. The authors were:
(a) Barb Brook from the Uniting Church in East Ivanhoe;
(b) David Oldenhover, is a parent of a child at the school;
(c) Vincenza Claridge, who is a parent of a child at the school;
(d) Nicole and Alex McIntyre, who are parents of a child at the school
(e) Anthony Brown who is in the position of caring for your parents.
63 The common theme of these testimonials is your readiness to pitch in and help others, be them your parents, students at the school or visitors to the church. It is patently obvious that you have been a greatly respected teacher at Ivanhoe Grammar School.
IMPACT ON YOUR VICTIM
64 Your victim, RAC, read a Victim Impact Statement into the record of the court on 1 October 2015. It was extraordinary to hear a person, who has been offended against in the manner just described, express such insight and understanding about your offending. He expressed empathy for your wife and children, for the pain and the publicity this offending has attracted. He expressed gratitude to his parents, wife and children, his friends for their love and support for him between the time of his disclosure and now. He thanked his counsellors at CASA and the police involved in the investigations of your crimes.
65 RAC also recognised how you used your position of responsibility at the school and your charismatic personality to lure him into your web of deceit for your own personal gratification. Your victim identified how you used the excitement of participating in trips away, gifts, scuba diving, drinking, music and driving to captivate him into idolising you.
66 RAC stated that you drove a wedge between him and his school friendship group so that you could have him for yourself. RAC thought now that this was all part of a bigger control and a fear that something might be said to expose your offending.
67 He stated that you got him to lie and deceive his parents, his siblings, family, friends and other teachers at the school. RAC states that it was like you had him under a spell with constant access to him at school, weekends and school holiday.
68 RAC says that if you were a professional level headmaster he would have become a popular, strong, confident student and leader at the school. Instead he was the subject of verbal bullying and ostracism, combined with rumours about your relationship.
69 RAC stated he didn't know why it took him 22 years to make the allegation and disclose your conduct. He spoke of struggling to get out of bed and experiencing amazing lows, waves of emotional confusion and feelings he had never experienced before. He says this is a result of your offending
70 RAC spoke positively of recovering and was pleased you had faced up to your offending. RAC's positivity is unusual in cases such as this one.
SENTENCING CONSIDERATIONS
71 The basic purpose for which a court may impose a sentence of imprisonment are just punishment; deterrence, both specific and general; rehabilitation, denunciation of your actions and the protection of the community.
72 In sentencing you, I must have regard to a range of factors such as the seriousness of your offending, your culpability for them and your personal circumstances and those of your victim.
73 I am required to balance the interests of the community in denouncing your criminal conduct and to ensure, as far as possible, you as an offender are rehabilitated and reintegrated into society.
74 You have pleaded guilty at an early stage in these proceedings. The plea was indicated, as I say, at an early stage. Your plea has the utilitarian value of allowing the orderly and effective administration of justice in this state, there is a certainty of outcome and a resolution of the substantive issues raised by your offending. Your plea also allows for the preservation of court and police resources to deal with other matters. Your plea vindicates the public confidence in the legal process set up to protect the community. You have, by your plea, relieved the victim from giving evidence against you. It facilitates some closure for him for your offending.
75 Your plea also is a clear acknowledgment by you that you accept responsibility for your criminal behaviour in this case and I accept that that is the case. Your plea also recognises you are willing to facilitate the court of justice in the community and it demonstrates remorse on your part.
76 I accept the opinions of Dr Barth and Dr Newton that you are remorseful. Your remorse is further demonstrated by your participation in the Sex Offender's course and a recognition by you of your offending.
77 You have no prior convictions. Of course your good character in part provided the cloak or cover for your offending in this case. Nevertheless, your lack of prior or subsequent offending, which is a period of some 24 years, is a good indicator of successful rehabilitation.
78 You have, of course, suffered a very public fall from a position of respect at your school. You have lost your employment, you have lost your career as a teacher. Your life's work at the one school has been completely devalued by your offending.
79 It was put on your behalf that a mitigating factor in your offending was that you ceased it voluntarily. I do not accept that it was voluntarily ceased by you. The parents of RAC approached you about the “inappropriate” nature of your relationship or closeness with their son. You knew that RAC's mother had been seeing some of the letter that you had written to RAC. You burnt those letters. You continued to have non-sexual contact with RAC into his adulthood. You ceased the sexual nature of your contact with RAC because you knew it was dangerous for you to continue it.
80 The distance in time between the offending and the time of the detection and the sentence is relevant for your sentence. The fact that you have led a blameless life for approximately 24 years since the offending indicates that specific deterrence and the protection of the community into the future are less important considerations in sentencing you at this time.
81 I have previously dealt with the impact of your offending on RAC and the fact the RAC's victim impact statement displays insight and a temperate approach to the offending against him is not determinative of the appropriate sentence. It merely removes one of the potential aggravating features for sentencing.
82 Mr Morrissey, on your behalf, conceded that an immediate term of imprisonment combined with a Community Corrections Order was an appropriate sentence in this case. Ms Borg, for the prosecution, submitted the court would not be falling into appellable error by imposing a combination sentence of immediate imprisonment and a Community Corrections Order. The effect of those submissions would be that the maximum term of imprisonment would be limited to a two-year period plus a Community Corrections Order on release.
83 The offending by you against a child in your care, control and supervision as a teacher in a position of authority, as a year level master, is a gross breach of trust to firstly RAC himself, secondly, to RAC's parents and, thirdly, to your school authority which entrusted you with the responsibility to carry out proper educative and pastoral care to its enrolled students. On most occasions the sex you had with RAC was unprotected.
84 Your offending is gravely serious. In cases where teachers offend against students in this manner general deterrence and denunciation assume significant importance as a sentencing factor. Just punishment is also a significant factor.
85 In this case in relation to Charges 3 through to 12 you are to be sentenced as a serious sexual offending under the provisions of the Sentencing Act1991.
86 Section 6E of the Sentencing Act1991 also requires that unless I otherwise direct, in respect of Charges 3 to 12 on the Indictment, the sentences I impose are to be served cumulatively.
87 Allowing for matters I have already outlined, it is appropriate to only impose that degree of cumulation to which I subsequently refer reflecting, as it does, separate episodes of offending. To do otherwise may produce a sentence which is not appropriate and which would be unjust.
88 I note here the prosecution did not call for a disproportionate sentence or for cumulation contemplated under s.6D and s.6E of the Sentencing Act 1991.
89 The Court of Appeal in the Director of Public Prosecution v Bales [2015] VSCA 261 recently stated the appropriate law on the interrelationship between s.6E of the Sentencing Act and the principles of totality. It stated as follows:
"It is plain that the purpose of s.6E is to require an approach to sentencing which marks specific denunciation of each offence to which the section applies. That is particularly the case when the offending involves, as it does here, a number of different victims. The legislative policy inherent in s.6E is that the offences committed against individual victims will be separate and distinct subjects of punishment. This will generally involve orders for cumulation, moderated to the extent necessary to give effect to the principle of totality so far as that can be done consistently with the policy of the section."
90 I note that the Court of Appeal in Boulton's case which has been referred to me in this plea stated as follows:
" It follows from what we have said that a CCO may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment (such as, for example, aggravated burglary, intentionally causing serious injury, some forms of sexual offences involving minors, some kinds of rape and some categories of homicide). The sentencing judge may find that, in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly-conditioned CCO of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects for rehabilitation."
91 I had you assessed for a CCO and you were assessed as suitable.
92 I do not accept that a combination sentence limited to a maximum two-year imprisonment in combination with a CCO is a just and appropriate sentence for the objective gravity of your criminal conduct in this case when you are to be sentenced as a serious sexual offender.
93 As part of the governing principles to be considered in sentencing you, I must take into account the current sentencing practices. That enquiry is directed particularly, but not exhaustively, to the kind of sentences imposed in comparable cases and the sentencing statistics at the time of the sentence. I have considered the statistics and the current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your case, as indeed they from one another. Neither counsel nor I could find appropriate statistics for sentencing practices at the time of your offending in 1991.
94 The principles of general deterrence and denunciation of your criminal conduct and just punishment call for terms of imprisonment for your offending.
Would you stand please?
95 On Charge 1 you are convicted and sentenced to one year imprisonment. On Charge 2 you are convicted and sentenced to three years' imprisonment, that is the base sentence.
Charge 3, you are convicted and sentenced to nine months' imprisonment. Charge 4, you are convicted and sentenced to nine months' imprisonment. Charge 5, you are convicted and sentenced to nine months' imprisonment. Charge 6, you are convicted and sentenced to nine months' imprisonment. Charge 7, you are convicted and sentenced to nine months' imprisonment. Charge 8, you are convicted and sentenced to nine months' imprisonment. Charge 9, you are convicted and sentenced to nine months' imprisonment. Charge 10, you are convicted and sentenced to nine months' imprisonment. Charge 11, you are convicted and sentenced to nine months' imprisonment. Charge 12, you are convicted and sentenced to nine months' imprisonment.
96 In terms of cumulation I order as follows: that four months in the sentence of charge 1 and three months in the sentence of Charge 3, one month in the sentence of Charge 4 and two months in each of the sentences of Charges 5, 6, 7, 8, 9, 10, 11 and 12 to be served cumulatively upon the sentence in Charge 2 and on each other. That is a total effective sentence of five years' imprisonment. I order that you serve three years before you will be eligible for parole.
97 Pursuant to s.6AAA of the Sentencing Act but for your plea of guilty I would have sentenced you to a total of seven years with five years nonparole period.
98 I declare that you have served seven days pre-sentence detention.
99 You have sentenced pursuant to s.6F of the Sentencing Act. You have been sentenced as a serious sexual offender for Charges 3 to 12.
100 In terms of the Sex Offenders Register, you are on the Sex Offenders Register for life as the offences are class 1 category.
101 I have signed the orders for s.464ZF, which is a forensic sample. In doing so I must advise you that in making that order it authorises the authorities to take from you a sample which is usually by way of a swab from your mouth and they are empowered to use reasonable force to obtain it if you do not agree.
102 I think you have to be given the Sex Offender Register paperwork.
103 HIS HONOUR: Mr Morrissey, you can approach your client when it is printed to explain it. Is that all in order?
104 MR MORRISSEY: Yes, Your Honour.
105 HIS HONOUR: You can take a seat. Mr Morrissey, thanks very much for your assistance. Ms Borg, these are very difficult cases.
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