Director of Public Prosecutions v Harris (a pseudonym)
[2022] VCC 2009
•16 November 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CODY MICHAEL HARRIS (A PSEUDONYM) |
---
JUDGE: | HER HONOUR JUDGE CHAMBERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1-2, 5-9 and 12 September and 27 October 2022 | |
DATE OF SENTENCE: | 16 November 2022 | |
CASE MAY BE CITED AS: | DPP v Harris (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2009 | |
REASONS FOR SENTENCE
---
Subject:Criminal law – Sentence
Catchwords: Two charges of sexual penetration of a child under 16 – one charge of indecent assault – one charge of incest – two charges of indecent act with a child under the age of 16 – verdict following trial – offending against two biological daughters and step-daughter – offending over protracted period of time against vulnerable victims – gross breach of trust – profound victim impact – serious examples of offences – inordinate delay in proceedings – limited criminal record not relevant to sentencing – application of limb 5 of Verdins due to acquired brain injury – guarded prospects of rehabilitation
Legislation Cited: Crimes Act 1958; Sentencing Act 1991; Sex Offenders Registration Act 2004
Cases Cited:Cheung v The Queen (2001) 209 CLR 1; DPP v Amaral (a pseudonym) [2020] VACA 290; Zhao v The Queen [2018] VSCA 267; Zhao v The Queen [2018] VSCA 267
Sentence: 8 years, 9 months' imprisonment with a non-parole period of 6 years, 2 months' imprisonment.
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr T. Crouch | Office of Public Prosecutions Victoria |
| For the Accused | Mr A. Malik | Stary Norton Halphen |
HER HONOUR:
1Cody Harris[1], on 12 September 2022 you were convicted by a jury of twelve of the following offences:
(a) Charges 1 and 2, being two charges of sexual penetration of a child under 16 contrary to s 45(1) of the Crimes Act 1958 (‘the Act’). In respect of these two charges, the jury was also satisfied beyond reasonable doubt that the victim was aged between 10 and 16 and was under your care, supervision or authority at the time you committed these offences. Accordingly, the maximum penalty for the offence is 15 years' imprisonment;
(b) Charge 5, being a charge of indecent assault contrary to s3 9 of the Act, the maximum penalty for which is 10 years' imprisonment;
(c) Charge 6, being a charge of incest contrary to s 44(1) of the Act, the maximum penalty for which is 25 years' imprisonment;[2] and
(d) Charges 7 and 8, being two charges of committing an indecent act with a child under the age of 16 contrary to s47(1) of the Act, the maximum penalty for which is 10 years' imprisonment.
[1] A pseudonym
[2]Being the maximum penalty for the offence of incest pursuant to s 44 of the Crimes Act 1958, committed after 1 September 1997
2Following the trial you were acquitted of Charges 3 and 4 on the indictment. The charges on which you were acquitted have no relevance to the sentence I am to impose upon today.
3You were born in October 1975 and are now 47 years old.
4The victims of your offending were your stepdaughter, Kaitlyn Cooke[3] and your two biological daughters, Abigail and Zara Harris.[4] At the time my reasons for sentence are published, I will anonymise your name and that of the victims to avoid any prospect of the victims being identified.
[3] A pseudonym
[4] Pseudonyms
5You fall to be sentenced on a basis consistent with the jury verdict in your trial.[5] The role of a trial judge in interpreting the jury's verdict for the purpose of sentencing is well-established. In assessing your criminal culpability for this conduct, I must be satisfied of the facts relevant to these issues to the criminal standard.[6] Findings made by the sentencing judge must be consistent with the jury's verdict.[7]
[5]Cheung v The Queen (2001) 209 CLR 1, 9 [6] (‘Cheung’).
[6]Cheung, at [7]
[7]Cheung, at [5] and [14]
Background to offending
6By way of background to your offending, between 1996 and 2003, you were in a de facto relationship with Emily Fullerton[8], with whom you had three children, a son and your two daughters, Abigail and Zara. You lived together in an address in Frankston North.
[8] A pseudonym
7After your relationship with Ms Fullerton broke down, Abigail and Zara lived with you. Their brother would spend time with you every other weekend and for half of the school holidays. In August 2006, following a Family Court order, all three children resided with you.
8
Between 2006 and 2010 you and your children lived at two further addresses in
Frankston North.
9
You commenced a relationship with Lauren Mashman[9] in approximately 2003.
Ms Mashman had a three children from a previous relationship, two sons and her daughter Kaitlyn, with whom she lived in Carrum Downs. You married Ms Mashman in November 2010 and after this, your children moved to live with you and Ms Mashman at another address in Carrum Downs. Ms Mashman's three children, including Kaitlyn, also moved to live at this address.
[9] A pseudonym
10In April 2012, you suffered an aneurysm which ultimately resulted in Abigail and Zara and their brother returning to live with their mother, Ms Fullerton in Morwell. You continued to see Abigail and Zara after that date.
11You and Ms Mashman separated in 2016.
Kaitlyn Cooke
12Turning first to Kaitlyn Cooke.
13Kaitlyn was born in November 1993 and is the victim of the two charges of sexually penetrating a child under 16, being Charges 1 and 2 and one charge of indecent assault being Charge 5.
14
The first offence of sexual penetration of a child under 16 occurs between November 2003 and November 2004 when Kaitlyn was approximately
10 years' old. You were between 28 and 29 years of age. On this occasion, you collected Kaitlyn from Seaford Railway Station following an access visit with her father. Kaitlyn recalled the offending occurred on the day you had a physical altercation with her father at the train station. Following this, you drove Kaitlyn home to her mother's address in Carrum Downs.
15
Once home, Kaitlyn rang her mother on the phone to tell her about the fight.
Ms Mashman was at work and told Kaitlyn she was unable to come home. You put on a movie for Kaitlyn to watch in the lounge room, and she lay down on a mattress that was on the floor in the room. At around 9 pm, when Kaitlyn believes her brothers were in their bedroom, you lay on the mattress next to her and began to touch her on the vagina. You initially touched her genital area over her clothing before moving your hand under her clothes, to penetrate her vagina with your finger or fingers.[10]
[10]Transcript T20, line 23-28
16Kaitlyn tried to push your hand away, but you did not stop, telling her it was 'okay'. She says she 'eventually just kind of let it happen'.[11] She says you moved your fingers in and out of her vagina. Kaitlyn gave evidence that she estimated this happened 'for at least five minutes'.[12] Although I am not satisfied beyond reasonable doubt that this is a precise time estimate, I am well satisfied the penetration was more than momentary, and lasted long enough for you to move your fingers in and out of her vagina. This is the conduct that is the subject of Charge 1, sexual penetration of a child aged under 16.
[11]Transcript T21, line 10
[12]Transcript, T 21, line 13-14
17
The second offence of sexual penetration of a child under 16 occurred on
26 July 2007. You were 31 years of age. Kaitlyn recalled the offending occurred on the night one of her brothers required hospitalisation for a stab wound following an altercation with her other brother. An ambulance was called and her mother accompanied her brother to the hospital. Ms Mashman then arranged for Kaitlyn to stay with you at your address in Frankston North. By this time, Kaitlyn was 12 years old.
18You had set up a mattress for Kaitlyn on the lounge room floor. Kaitlyn recalls that it looked like you had been drinking. She had seen you drinking alcohol that night.[13] When she was almost asleep you lay next to her and began touching her on the vagina. You initially touched her over her clothes before moving your hand inside her clothing and penetrated her vagina with your fingers, using one or two fingers. Kaitlyn tried to move away and to push your hand away.[14] You told her it was 'okay'.
[13]Transcript, T23, line 14-17
[14]Transcript T24, line 8-10
19
Kaitlyn says you moved your fingers in her vagina, before you got up and left. In her evidence, Kaitlyn again estimates you penetrated her vagina for 'at least
five minutes' but said she could not 'fully remember'.[15] Again, I cannot be satisfied you penetrated her vagina with your finger or fingers for the five minute period estimated by Kaitlyn, but I am satisfied you did so for a period long enough to move your fingers in her vagina. It was more than momentary. This is the conduct the subject to Charge 2, sexual penetration of a child aged under 16.
[15]Transcript T25, line 1-4
20The jury was satisfied beyond reasonable doubt that Kaitlyn was between 10 and 16 and was under your care, supervision or control at the time you committed both of these penetrative offences. These are aggravating features of the offending.
21The last occasion you offended against Kaitlyn was between January 2010 and December 2012, when the family were living together in Carrum Downs. At this time, Kaitlyn was between 16 and 18 years of age. This relates to an incident in the backyard where there was an above ground swimming pool.
22On this occasion, Kaitlyn was in the swimming pool with a friend. You came up to her and pulled at her bikini strap, exposing her breasts. This is the subject of Charge 5, the charge of indecent assault.
23Kaitlyn Cooke never spoke to anyone about your offending against her until November 2011, when she told her boyfriend that you had sexually assaulted her. Kaitlyn then moved out of the house and moved in with her boyfriend's family. In December 2011, Kaitlyn told her mother about your offending against her and applied for an intervention order against you.
Abigail Harris
24I turn now to discuss your offending against your daughter, Abigail Harris.
25Abigail was born in July 1999, and was between four and five years of age at the time of your offending against her on an occasion between 21 July 2003 and 21 July 2005. You were aged between 27 and 29.
26On that occasion, Abigail was in her bedroom, a room she shared with her sister, Zara. Abigail was in bed, wearing her flannelette pyjamas. You entered her bedroom, unbuttoned her shirt and then removed her pyjama pants and underwear. You ran your hand over her stomach and then down between her legs. You then touched her around her vagina before putting your fingers inside her vagina. Abigail gave evidence that this lasted 'about five minutes'.[16]
[16]Transcript T83, line 23-24
27
Again, I am satisfied the penetration was more than momentary, even though
I cannot be satisfied beyond reasonable doubt it lasted for the five minutes estimated by Abigail. While you penetrated her vagina with your fingers, Abigail says she asked what was happening, but you did not say much, just to stay quiet.[17] She says you then re-dressed her, putting her pyjama pants on backwards, without saying anything further to her. This is the conduct that is the subject of Charge 6, the charge of incest.
[17]Transcript T83, line 27-28
28Additional evidence was led at trial about other sexual misconduct relating to Abigail. You were not charged in respect of this conduct, but it is relevant to the context to your offending. Abigail says you would also touch her upper thighs, between the legs on her thigh on numerous occasions.[18] On one occasion, you caressed the cheeks of her bottom while she was in bed. These incidents occurred after you had split from Ms Fullerton and the children were living with you. When she was living with you in the last address, Abigail says you watched her showering from the outside window.
[18]Transcript T84, line 14
29Abigail did not tell anyone about you touching her sexually until she told a youth worker when she attended a Youth In-Search camp in 2017.
Zara Harris
30I turn now to your offending against your other biological daughter Zara Harris.
31Zara was born in April 2001 and had just turned 15 years old when you first offended against her. At this time she was visiting you every second weekend and on holidays. You were then 40 years old.
32The first incident occurred when Zara was staying with you at the home of a friend of yours. You had been drinking alcohol on this occasion. Everyone else was in bed. Zara was watching TV and was falling asleep on the couch. You sat down next to her and touched her stomach and her legs. You then moved your hands up to her chest and touched her breasts under her clothing. Zara told you not to do this, and then fell asleep. This is the conduct that is the subject of Charge 7, committing an indecent act with a child under 16.
33The second incident was on New Year's Eve in 2016 when Zara stayed with you at the home of your brother's family in Euroa. You had been drinking alcohol that night. You sat on a chair next to Zara, who was seated on the couch. You started to touch and then massage her shoulders before moving your hands down to touch her on the breasts. Zara told you not to touch her and told you to stop. You replied that it was fine, and that 'it is allowed, 'cause you are my daughter and you don't know anything'.[19] Zara then got up and went to the bedroom she was staying in that night and locked the door. This is the conduct that is the subject of Charge 8, committing an indecent act with a child under 16.
[19]VARE of Zara Harris, Q/A 60-62
34
Zara did not discuss your offending with anyone until she told a friend, who later became her boyfriend, when she attended the Youth In-Search camp in
September 2017. She also told the youth worker at the camp that you had touched her on the breasts, and the youth worker encouraged her to tell her mother,
Ms Fullerton.
35The police commenced an investigation into your offending in late 2017 after a complaint was first made by Zara. You were arrested on 1 March 2018 and interviewed. You denied committing any of the alleged offences during your interview with police.
Procedural history
36
These proceedings have been protracted for various reasons, leading to significant delay. After being charged on 2 March 2018, a contested committal was conducted at the Magistrates' Court over three days in August 2018. A trial was listed in the County Court to commence on 28 January 2020, but did not proceed when the court was advised that the matter had resolved to a plea. On
30 January 2020, you were arraigned and remanded in custody.
37On 11 June 2020, you instructed solicitors to apply to change your plea, and new solicitors were engaged. On 18 November 2020, your application to change your plea was heard, and was granted on 10 December 2020. I accept the defence submission that the delay occasioned by your change in plea, given the application was ultimately upheld by the court, is not attributable to any fault on your part. The court had found you were overwhelmed at the time you took legal advice to plead guilty, and that you had always maintained your innocence.
38You were granted bail on 13 October 2021.
39On 28 July and 6 August 2021, special hearings were conducted for Zara, following a pre-trial tendency ruling dated 26 April 2021.
40A trial commenced before me on 30 May 2022, but the jury was discharged without verdict on 7 June 2022, when I contracted COVID-19. A re-trial commenced on 15 June 2022, but again the jury was discharged on 21 June 2022 due a number of jurors contracting COVID-19. This was undoubtedly a highly stressful period for you, and for which you bear no responsibility.
41This trial proceeded between the 1st and 12 September 2022 following which you were convicted and remanded in custody. The matter was adjourned for plea to enable additional plea material to be obtained. The plea proceeded before me on 27 October 2022.
42I will return to the relevance of this lengthy period of delay later in my reasons for sentence.
Gravity of offending and criminal culpability
43I turn now to discuss the nature and gravity of your offending.
44This was undeniably serious offending. The offence of incest in inherently serious, as gauged by the maximum period of 25 years' imprisonment. As the authorities indicate, the maximum penalty is a reflection of the community's abhorrence of the crime of incest.
45The reason the offending is inherently serious is because, by its nature, the crime of incest involves a foundational breach of the trust reposed in a parent to care, nurture and protect their children from harm. As stated by the Court of Appeal:[20]
‘Incest involving a child is an appalling crime. It involves a breach of trust of the most fundamental kind, and an inexplicable abdication of parental responsibility. Just as seriously, it involves a cynical exploitation by the parent of the opportunity for sexual contact which being in that position of trust presents.'
[20]DPP v Amaral (a pseudonym) [2020] VACA 290 at [33]
46The act of sexual penetration was an abhorrent violation of your four-to-five year old daughter. Her very young age increased her vulnerability. You exploited that vulnerability for your own sexual gratification. The law recognises that the act of incest is itself, an act that necessarily involves violence.
47This was not isolated offending. You sexually offended against not one, but two of your daughters and then, whilst she was in your care, the daughter of your partner. You exploited opportunities to sexually offend against the victims over a period spanning 13 years, including the other sexual misconduct that is part of the context to your offending. I accept there were also reasonably significant gaps in time between your offending.
48There is also evidence that your offending against Kaitlyn Cooke involved a degree of persistence in the acts of sexual penetration. On both occasions, she tried to push your hand away, but instead of desisting you sought to reassure her that your conduct was 'okay'.
49There is no hierarchy of penetrative offences. Digital penetration of a child's vagina is a serious penetrative offence, although I accept it does not carry the risks of pregnancy or infection associated with penile penetration.
50The assault of your daughter Zara, involving touching her on the breasts when she was over 15, was also brazen offending in the circumstances in which it occurred, not once by twice. This was another instance of you persisting in your offending conduct, on the second occasion, despite Zara telling you to stop, replying it was 'allowed' because she was your daughter.
51Your offending has had a significant impact on each of the victims. In her victim impact statement, Kaitlyn describes the sense of betrayal left by your offending, and of a loss of trust in all adults. Although she bears no blame for your conduct, she is angry with herself for being unable to stop you. She suffers from flashbacks, which cause her significant distress. Your offending undermined her right to feel safe in her own home, leading to her decision to leave the house she lived in with her mother and family at the age of 18. This in turn, has impacted on her financial and emotional wellbeing.
52Your offending against Kaitlyn also undermined the trust Ms Mashman placed in you to care for her daughter. Ms Mashman's victim impact statement reflects on the impact of your offending on her daughter, saying she feels her daughter’s 'childhood was stolen from her'.
53For Abigail and Zara, the impact of your offending has been profound. Their victim impact statements both speak of feeling less safe, less trusting of others. Both say they now suffer from a range of mental health issues, including PTSD, depression and anxiety which impacts on their day-to-day lives. Abigail too, feels that she bears responsibility for your abusive behaviour for not disclosing it earlier. Of course, she is not responsible for your offending conduct, but the guilt she expresses is genuinely felt.
54These were serious examples of each of the offences, although objectively they are not in the upper range of seriousness for offences of this type. I accept the submission of Mr Malik, that beyond the violence inherent in the sexual acts, there is no evidence of other overt violence or threats of violence directed at the victims. Nonetheless, your moral culpability for your offending is significant, but is also informed by your personal background to which I now turn.
Personal history and background
55You were born in Frankston in 1975 and enjoyed a good relationship with your parents and siblings. You have an older brother and sister. Your father worked for Iveco Trucks as a truck driver and your mother cared for you and your siblings as you grew up. You report that your father was a strict disciplinarian and drank a lot at times.
56You attended Monterey Primary and High School and completed Year 10 at Monterey Technical School. At school, you had a number of detentions and suspensions, but had no difficulties in your relationships with peers.
57
After leaving school, you completed a Certificate V in Automotive Diagnostics at Frankston TAFE. You began working in the car industry after school, but an intended apprenticeship did not eventuate. You worked in a number of other areas before purchasing a transmission and spare parts business which you ran for close to five years, before selling it. You travelled, and then worked at a dairy for
18 months before you were first remanded. It can be seen that you have had a reasonably steady employment history.
58Following your release from custody, you lived with your parents in Leongatha and worked at a local car dealership. You continue to have a close relationship with your parents, and have their ongoing support, including the option of returning to live with them upon your ultimate release from custody.
59You have had two significant relationships in your life; first with Ms Fullerton with whom you had the three children. After that relationship ended you began your relationship with Ms Mashman, who you married in 2010. That relationship ended in 2016.
60In 2012, you suffered a subarachnoid haemorrhage following an artery aneurysm, requiring surgery, an extended hospital stay and three months of rehabilitation. You report that this led to some mental health issues, particularly when you were unable to work.
61You have had a long-standing problem with alcohol abuse. This became apparent during the evidence led at trial.
62You began binge drinking on weekends as a teenager, escalating to regular alcohol consumption in your mid-twenties. By the time you suffered your aneurysm in 2012, you were drinking up to 15 stubbies of beer a day. Following your aneurysm, you significantly reduced your alcohol consumption for a period, but by the time you returned to work you were again drinking 10 stubbies of beer a day, and a slab a day on non-work days.
63Although you had previously used cannabis in your teens, drug abuse is not an issue.
64You were assessed by Neuropsychologist, Anna McLaren for the purposes of your first plea hearing on 12 May 2020. Ms McLaren's report dated 24 May 2020 was tendered in your plea hearing before me.
65Ms McLaren reviewed the medical records of your admission to hospital following your aneurysm, leading to an acquired brain injury ('ABI') for which you required months of in-patient rehabilitation. Eleven months after your initial admission, you underwent further neurosurgery for a second unruptured aneurysm.
66While you were an inpatient in 2012, you had two neuropsychological assessments, both of which indicated impairments of higher level attention and executive function and some behavioural difficulties. Records from your time in rehabilitation noted decreased insight, stating that you appeared disinhibited at times and would make inappropriate comments to other patients, including sarcastic comments. The records noted an unreliable ability to 'pick up on cues from others'.[21]
[21]Exhibit A – Neuropsychological report of Anna McLaren dated 24 May 2020 at page 5.
67Ms McLaren conducted various neuropsychological tests during your assessment, concluding that your overall intellectual function is currently within the low-average range, with a particular weakness in verbal intellectual ability, attention and executive function. At the time of her assessment, Ms McLaren expressed the opinion that your history of chronic heavy alcohol consumption may have exacerbated your impaired higher level attention and executive skills, particularly as it had been only four months since you ceased drinking at the time of her assessment.
68The cognitive impairments Ms McLaren identified as associated with your ABI are permanent and are expected to persist into the future.[22] Ms McLaren states these cognitive impairments would be exacerbated when you are acutely intoxicated.
[22]Ibid at page 19 c.
69
Mr Malik did not submit there was any causal link between your ABI and the offending that is the subject of Charges 7 and 8, which both post-date your aneurysm. In the absence of any evidence supporting such a connection,
I cannot find that your ABI reduced your moral culpability for that offending or the need for the sentence on those charges to operate as a general deterrent to others.
70You have a limited prior criminal record. You were placed on an adjourned undertaking in October 2008 for an unlawful assault and fined $3,000 with conviction in September 2009 for making a false report to police. Notably, you have no prior criminal history for sexual offending. Your prior criminal offending has no relevance to the sentence I am to impose for this offending.
Matters in mitigation
71Having discussed the objective gravity of your offending, I now turn to discuss the matters in mitigation that were advanced on your behalf.
72
Firstly, and significantly is the issue of delay. There has now been a period of over four and a half years since you were first arrested on these charges. This includes a period of approximately 18 months between the contested committal in
August 2018 and the first listing of the trial in 2020. While much of his period was attributable to the change in plea application, a further 15 months elapsed between the time you were granted leave to vacate your plea in December 2020 and the matter proceeding to trial. This delay was referrable to the impact of the
COVID-19 pandemic on the conduct of jury trials in 2021.
73
Then, as I have discussed, you were found guilty following the third trial of this matter, with the jury discharged without verdict on two earlier trials due to
COVID-19. Undeniably, this must have been a particularly stressful and difficult time for you. I accept that the delay occasioned by these deferred trials would also have been distressing for the complainants, although fortunately they were not required to give evidence more than once.
74Inordinate delay, such as this, is relevant to sentence in two ways. First, through no fault of yours, you had these serious charges hanging over your head over these years, not knowing what the ultimate outcome would be. I accept that this delay has been a source of significant stress for you, particularly the ordeal of being subject to three separate trials before a verdict was reached. This additional burden is itself a form of punishment, and entitles you to a significant moderation in the sentence I will impose.
75
Secondly, a period a substantial delay may provide evidence of rehabilitation, even where an offender pleads not guilty.[23] It is true that you have no prior history of sexual offending, and have not re-offended since the last offence committed on
31 December 2016, and I have taken this into account in assessing your prospects of rehabilitation. However, given the nature of your offending, and the period of time over which you sexually offended against not one, but three separate victims, I am presently unable to conclude that you have good prospects of rehabilitation.
[23]R v Talia [2019] VSCA 260
76There are certainly factors that tell in favour of your future prospects. You have ongoing family support, especially from your parents. Despite the challenges posed following your aneurysm in 2012, you resumed employment after that time, and again following your release on bail in October 2021. You have demonstrated a strong work ethic. However, your counsel accepts that the evidence at trial indicates your offending occurred at times you were intoxicated. This is relevant in the context of a long-standing alcohol abuse problem. Even following your aneurysm, you ultimately resumed consuming significant amounts of alcohol, right up until the time of your remand. Your history of alcohol abuse is a risk factor for your future rehabilitation.
77You still maintain you did not commit these offences against your daughters and stepdaughter. This, of course, is not an aggravating feature of your offending, and you must not be punished for running a trial. However, there is no evidence of remorse or acceptance of responsibility by way of mitigation.
78At the time you were assessed by Ms McLaren in May 2020, you said there was 'not much merit' in the complaints made by the victims, stating these were 'people being caught out elaborating the truth, making false statements'.[24] You said you could not comment on the impact of your behaviour on the lives of others.[25] An offender who pleads guilty is entitled to a significant sentencing discount, in part to reflect the fact that they have acknowledged responsibility for their offending conduct, and you are not entitled to that benefit or discount.
[24]Exhibit A – ibid, at page 7
[25]Ibid.
79Since being remanded you have demonstrated some motivation to manage your alcohol abuse by completing a 16-hour drug and alcohol program in custody. Your future rehabilitation will depend on your ability to commit to ongoing treatment to manage your alcohol dependency, in addition to engaging in a specialist sex offender program. At present, I am unable to assess that you have any insight into the nature and gravity of your offending or the profound effect it has had on the victims. For this reason, your future prospects will also depend, to a large degree, on your ability to engage effectively in a sex offender treatment program.
80For now I remain somewhat guarded about your future prospects of rehabilitation, even accepting that you have not offended since 31 December 2016. There remains a need for the sentence I impose to operate as a specific deterrent to you however, the weight I attach to that factor is not as significant as the need for the sentence to operate as a general deterrent to others.
81The second matter that is relevant in mitigation relates to the burden of your imprisonment. During the period in which you were advancing your application to vacate your plea, you spent approximately eight months in custody at the height of the COVID-19 pandemic. To respond to the risks posed by the virus, various restrictions were imposed in prisons in Victoria, including increased periods in lockdown, a suspension of personal visits, and restrictions on vocational and rehabilitation programs. Due to distance and their advanced age, your parents have been unable to visit you in prison. For someone who has never been sentenced to imprisonment in the past, these factors will have made your time in prison a more difficult and isolating experience.
82I have also had regard to the opinion expressed by Ms McLaren in her report regarding the impact of your ABI on your experience of prison. She states:[26]
‘Mr Harris' weakness in verbal intellectual abilities may impact on his ability to appropriately judge and understand risks in social situations, which combined with his tendency to rush into things, may make him vulnerable and open to manipulation. His tendency for black-and-white thinking, combined with his somewhat inappropriate sense of humour/sarcasm, and limited insight may also result in increased risk of getting into antagonistic interactions and misjudgement of social situations.'
[26]Exhibit A, ibid, page 19, paragraph d.
83I accept that due to your ABI, you have certain attributes which make you more vulnerable in a prison setting. Accordingly, limb 5 of the authority in Verdins is enlivened and also operates in mitigation of your sentence.
Other sentencing considerations
84In sentencing you, I have had regard to the purposes of imposing sentence that are set out in s 5 of the Sentencing Act 1991. In a case such as this, the most significant sentencing considerations are those of general deterrence, just punishment and denunciation. In sentencing you, I must deter others from exploiting the opportunity that presents by virtue of the relationship of trust to sexually offend against their children, or children placed in their care.
85
Your offending also attracts the serious offender provisions of the
Sentencing Act 1991.86Pursuant to s 6B(2)(a) of the Sentencing Act 1991 you are to be sentenced as a serious sexual offender on all remaining offences after being sentenced to a term of imprisonment on two or more sexual offences. Section 6D of the Sentencing Act 1991 requires that the protection of the community be the principal purpose of sentencing in relation to those offences. The prosecution does not submit that I should impose a disproportionate sentence to achieve the protection of the community, and given you have no history of prior sexual offending, I accept that submission.
87Section 6E of the Sentencing Act 1991 requires that the term of imprisonment imposed on the remaining charges must, unless otherwise directed, be served cumulatively upon other sentences of imprisonment that are imposed.
88
In considering the amount of cumulation to be ordered, I have had regard to the legislative presumption created by s 6E of the Sentencing Act 1991. As the
Court of Appeal has explained, the evident object of s6E is 'to make sentences to which it applies operate cumulatively rather than concurrently'.[27] However, this does not mean that the presumption of totality is to be disregarded.[28] Here, a significant degree of cumulation is warranted to reflect the distinct acts of offending against the three separate victims, but not to such a degree as to impose a sentence disproportionate to your overall criminality.
[27] DPP v Hum(a pseudonym) [2022] VSCA 57 at [113]
[28] Zhao v The Queen [2018] VSCA 267at [91]-[94].
89On your behalf, Mr Malik accepted that a lengthy sentence of imprisonment is the only available sentencing disposition, but submits that you should receive a longer than usual parole period to maximise your prospects of rehabilitation. In my view, there is nothing about your case that would warrant such a disposition, other than the delay to which I have referred and taken into account.
90As I have said, although you are not to be punished for running a trial, you have not pleaded guilty, you have not shown remorse or insight into your offending, and there is no other matter personal to you that would justify a significant departure from the usual course in fixing a head sentence and non-parole period.
Sentence
91Balancing the sentencing considerations to which I have referred, whilst having regard to the maximum penalty imposed for each offence, I now sentence you as follows.
92On Charge 1, sexual penetration of a child under 16 (under your care, supervision or authority), you are convicted and sentenced to four years' imprisonment.
93On Charge 2, sexual penetration of a child under 16 (under your care, supervision or authority), you are convicted and sentenced to four years' imprisonment.
94On Charge 5, indecent assault, you are convicted and sentenced to six months' imprisonment.
95On Charge 6, incest, you are convicted and sentenced to six years' imprisonment. This is the base sentence.
96On Charge 7, indecent act with a child under 16, you are convicted and sentenced to 16 months' imprisonment.
97On Charge 8, indecent act with a child under 16, you are convicted and sentenced to 16 months' imprisonment.
98
I make the following orders as to cumulation. I order that 12 months of the sentence imposed on Charge 1, 12 months of the sentence imposed on
Charge 2, one month of the sentence imposed on Charge 5, four months of the sentence imposed on Charge 7 and four months of the sentence imposed on Charge 8 be served cumulatively upon Charge 6 and upon each other.
99This gives a total effective sentence of eight years, nine months' imprisonment. I fix a period of six years, two months' imprisonment before you are eligible for parole.
100
Pursuant to s 18 of the Sentencing Act 1991 I declare that 687 days of
pre-sentence detention be reckoned as already served under this sentence.
101Pursuant to s 6F of the Sentencing Act 1991, I record that on Charges 5, 6, 7 and 8, you are sentenced as a serious sexual offender.
102Mr Harris, your offending attracts the provisions of the Sex Offenders Registration Act 2004 and you are to be registered as a sex offender. This is mandatory and the period of registration is life. You will be required within seven days of your release from custody to report your personal details and to comply with the requirements of that Act for life.
- - -
0
3
0