Director of Public Prosecutions v Hayes (a pseudonym)
[2019] VCC 1109
•19 July 2019
| IN THE COUNTY COURT OF VICTORIA | Revised |
SEXUAL OFFENCES LIST
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LYNDSAY HAYES (A PSEUDONYM) |
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| JUDGE: | HIS HONOUR JUDGE HIGHAM |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 5 July 2019 |
| DATE OF SENTENCE: | 19 July 2019 |
| CASE MAY BE CITED AS: | DPP v Hayes (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 1109 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – incest – common assault – indecent act with a child under
16 – plea of guilty
Legislation Cited: Crimes Act 1958 (Vic), ss 44(2), 47(1)
Cases Cited: Director of Public Prosecutions v G [2002] VSCA 6; DPP v Dalgliesh
[2016] VSCA 148
Sentence: Total effective sentence of 18 years’ imprisonment with a non-parole
period of 14 years
Section 6AAA declaration: 23 years’ imprisonment with a non-parole
period of 19 years---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S MacDougall (Plea) Ms S Jankovic (Sentence) | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr T Fitzpatrick (Plea) Mr A Campbell (Sentence) | Nicholas Rolfe Solicitors |
HIS HONOUR:
1Lyndsay Hayes[1], you have pleaded guilty to six charges of incest (Charges 1, 2, 3, 5, 12 and 13), for which the maximum penalty is a term of imprisonment of 25 years; one charge of common assault (Charge 4) for which the maximum penalty is a term of imprisonment of five years; and six charges of indecent act with a child under the age of 16 (Charges 6, 7, 8, 9, 10 and 11) for which the maximum penalty is a term of imprisonment of 10 years.
[1] Lyndsay Hayes is a pseudonym
2You have also pleaded guilty to Summary Charges 1 and 2, of failing to answer your bail, for which the maximum penalty is a term of imprisonment of two years; Summary Charges 3 to 6 of contravening a condition of bail, for which the maximum penalty is 30 penalty units or three months’ imprisonment; and Summary Charges 7 to 9 of harassing a witness in a criminal proceeding, for which the maximum penalty is a term of imprisonment of one year.
3Tendered on the plea as exhibit 1 was a Summary of Prosecution Opening, wherein the details of your offending were set out. There were two primary victims of your offending, Phoebe Dunn[2] and Rhianna Power[3]. Phoebe was the daughter of your then de facto partner, Anne Dunn[4]. Rhianna was the daughter of your second wife, Susie Power[5]. Phoebe was born in 1998 and Rhianna was born in 1999.
[2] Phoebe Dunn is a pseudonym
[3] Rhianna Power is a pseudonym
[4] Anne Dunn is a pseudonym
[5] Susie Power is a pseudonym
4In 2003 you were separated from your wife who lived with your three children in Shepparton. You met Anne Dunn through her former husband who had begun dating your sister. In time, you began a relationship with Anne and a month later, you moved in with Anne and her daughter Phoebe at their home in Hoppers Crossing. Your own children would come down from Shepparton to visit.
5Anne was a shift worker, working all hours. Phoebe was left in your care whilst her mother worked. This is when your offending against her occurred. On one occasion, when Phoebe was about eight years old, you took her to her bedroom, ripped her pants and underwear off, poured baby oil onto your hands and then put your fingers into her vagina. You pushed your fingers in and out of her vagina, causing her pain. She ran away. You yelled at her to come back. This is the offending in Charge 1, digital/vaginal incest. Charge 1 is a representative charge.
6On another occasion, you were watching horse racing on the television, when Phoebe came into the lounge room. You ordered her to get down onto her knees in front of you and to put your penis in her mouth. You then ejaculated in her mouth and told her to swallow it. This is the offending in Charge 2, penile/oral incest. Charge 2 is also a representative charge.
7Another time, Phoebe was on the floor watching television in the lounge. You came in, grabbed her by both her feet and dragged her into her mother's bedroom. You picked her up and placed her onto her mother's bed, removed her clothing and then removed your own pants and underwear. You penetrated her vagina with your penis. She was screaming in pain. You ignored her screams and carried on until you ejaculated inside her. Only then did her ordeal end. This is Charge 3, penile/vaginal incest. Charge 3 is a representative charge.
8On another occasion, you came into the bathroom when Phoebe was getting some cotton buds. You put her on top of the toilet seat, removed her pants, pulled your own pants down and again penetrated her vagina with your penis. You were on this occasion so rough, that the toilet seat cracked. You ejaculated inside her and then walked off. This is a represented instance of offending in Charge 3.
9Phoebe would often travel with you to Shepparton when you drove your own children back after a visit. On an occasion when you were returning from Shepparton, Phoebe was with you in your car. You ordered her to climb over from the back seat into the front, because you wanted her to 'play with it'. When she refused, you became angry and told her that she would be punished when you got home. After arriving at home, Phoebe went to her bedroom. You dragged her from her bedroom and took her into the lounge room, where you punched her in the face. This is Charge 4, common law assault.
10You then demanded that she give you a ‘blow job’. You sat on the couch and pulled your pants down. Thus, when Phoebe was on her knees, you forcibly rammed your penis in and out of her mouth. This is a represented instance of Charge 2.
11There are three represented instances of Charge 1, digital vagina incest, where the offending occurred in the bedroom of your daughter.
12On one specific occasion of the three, after having placed Phoebe on your daughter's bed and digitally penetrating her vagina, you then licked her vagina with your tongue. This is Charge 5, lingual/vaginal incest, whilst masturbating your penis, Charge 6.
13On another occasion, in the house at Hoppers Crossing, Phoebe was wearing a nightie and lying on the floor watching television in the lounge. You told her to turn on her back and not to move. You were looking at a book, which included diagrams of female genitalia. You claimed to be examining Phoebe's genitals. With the book as a purported guide, you used your fingers to spread her genitalia apart. This is Charge 7.
14On another occasion, Phoebe was in bed when you came into her bedroom and told her to get up as The Muppets were on television. When she went into the lounge and turned on a channel, at your direction, she saw a male and a female having sex. She was confused. You, however, left the room, telling her that you would tell her mother that she had been watching porn. This is Charge 8.
15Throughout the period of your abuse of Phoebe, you would tell her that her vagina belonged to you. If she did not cooperate with your sexual demands, you would refuse her food. If she did as you were told and complied with your demand, you would later allow her to eat as a reward. You also threatened Phoebe that her family would be killed if she told anyone. On one occasion, Phoebe's mother Anne found blood inside her daughter's underwear. When questioned, Phoebe said she did not know why it was there.
16When Phoebe was approximately ten years old, she told her mother that you had been hurting her. This disclosure happened after Phoebe attempted to run away from home. Your relationship with Phoebe's mother promptly ended. Phoebe did not disclose your sexual violation of her until she was in year 9, when she told her mother that you had raped her. The matter was finally reported to the police in July 2016.
17When interviewed by police on 11 January 2017, you denied the offending, falsely asserting that you were 'not into kids'. You distanced yourself from any parenting responsibility for Phoebe and denied ever having Phoebe in your care. You stated, 'I was never alone with [Phoebe], never, ever' and further that Phoebe had never made the trip to Shepparton with you. That interview was a confection of fabrication, lies, denial and evasion.
18You met Susie Power, the mother of your second victim Rhianna, shortly after your relationship with Anne Dunn had ended. Susie had divorced her husband in January 2008. Her two eldest children had moved away from home, but her two youngest children, one of whom was your victim Rhianna, were living with her.
19It is unclear whether the attraction for you was Susie or the fact that she had daughters. Shortly after meeting, you moved into the family home in Shepparton, moving then to a larger home so your own three children could visit and then to another house.
20Before you met Susie, there had been an incident where a friend of Rhianna's father had exposed his penis to her. Early on in your relationship with Susie, Rhianna told you and her mother about that incident. Later that same night, when you and Rhianna were alone in the house, you went into her bedroom and said words to the effect of 'what your dad's friend did was the right thing'. You then heard Susie's car returning and so you left the room. The next day, you and Rhianna were alone in the house. Rhianna was watching television. You stood in front of the television, took down your pants and exposed your erect penis, telling her to 'come and look at this'. She left the room. She did not tell anyone about what you had done as she was scared of what you might do in the future. This is Charge 9, a representative charge.
21Some months later, you went into Rhianna's bedroom when she was doing homework. Your partner and your victim's sister were also in the house. You pulled down your pants and exposed your penis to her. Your victim told you to go away and pushed you out of the door. This is a represented instance of the offending in Charge 9.
22In April 2010, you married Susie Power at a Baptist church in Queensland. You then moved to various addresses. On one occasion when you were living in Victoria, when you and Rhianna were alone in the house, you went into Rhianna bedroom where she was watching television. You began touching Rhianna on the vagina over her clothing. Rhianna told you to stop. This is Charge 10.
23From November 2012 until mid-2014, you and the family lived in Queensland. It was in Queensland that you began to commit both digital vaginal and penile vaginal acts of incest on your victim. You repeatedly threatened that if Rhianna ever told anyone, then she and her family would be killed. Thus by the time you returned to Victoria, Rhianna had already been bent to your will and made compliant in your sexual violation of her.
24In 2015, Rhianna got a casual job working at KFC. On Mother's Day 2015, you went into Rhianna's bedroom. She told you to leave her alone. Your response was to close the door, pull down your pants and begin to masturbate yourself. This is Charge 11.
25You then approached Rhianna as she sat on her bed, pushed her backwards, removed her pants and underwear and penetrated her vagina with your fingers. This is Charge 12, digital/vaginal incest. After that, you penetrated her with your penis. This is a represented instance of Charge 13. Once you had finished, you pulled up your pants and told your victim that 'I missed you. Remember don't tell anyone' before leaving the room.
26In May 2015, the family moved again. Not long after the move, Rhianna was getting ready to go to work. You and she were alone in the house. You came into her room, began chatting normally, before your demeanour suddenly changed. As Rhianna was putting on her shoes, you pushed her back onto her bed, removed her belt and pulled her pants and underwear down to her ankles. Removing your shorts, you pulled her legs apart, before penetrating her vagina with your penis. Your victim was screaming at you, telling you to get off. Your response was to tell her that she liked it. When you had finished, you left her room, hearing her mother, your wife, coming down the hallway. This is Charge 13, penile/vaginal incest, a representative charge.
27Whilst you were living at this address, your relationship with Susie Power deteriorated and you began sleeping in separate rooms. Meanwhile, Rhianna began to manifest symptoms of pregnancy. You persuaded the family to move to Queensland. Before the move, you told your wife that you suspected that Rhianna was pregnant. Rhianna was asked by her mother, but she denied the pregnancy. In September 2015, the family moved again to Queensland. In January 2016, you and Susie Power separated. On 15 April 2016, your 16 year old victim Rhianna gave birth to a daughter. In June 2016, Rhianna told her mother that DNA tests would reveal that you were the father of her child. The matter was reported to police and investigation commenced.
28On 20 June 2016, during a recorded telephone conversation, you firstly denied having sex with Rhianna, then admitted having sex, but placed all responsibility upon Rhianna. You said that she liked it. You said she had asked for it. You concluded that you had had sex with her: 'because you are a nice girl. Because you are very good girl, you wanted sex, you liked it'.
29When interviewed by police on 11 January 2017, you denied all allegations of sexual offending against Rhianna. You insisted that you treated the girls like your own. You told police that the girls were sexually active, not with you, but with other boys and as to the pregnancy, you said it would be a complete fluke by some impossible means of secondary transmission for the baby to be yours. You were then charged. Quite remarkably, you were admitted to bail.
30The matter was listed for a committal hearing on 30 and 31 August 2017. You failed to appear and a warrant was issued for your arrest (Summary Charges 1 and 2). Subsequent enquiries established that you had fled the jurisdiction (Summary Charges 3 to 6). You changed your name, changed your mobile number, closed your previous bank accounts, changed your appearance and moved interstate to New South Wales. You were apprehended in New South Wales on Victorian warrants. Prior to your extradition to Victoria, you had attempted to escape from custody in New South Wales and faced criminal charges in relation to that attempt before being brought back to Victoria. You are, of course, not to be sentenced for offences committed outside the jurisdiction.
31On 10 September 2018, you were charged with Summary Charges 1 to 9. Your conditions of bail prohibited contact with prosecution witnesses, save for the Informant. Between 25 December 2017 and 6 January 2018, you contacted Susie Power and your victim Phoebe Dunn via Facebook (Summary Charges 7 to 9.
32Phoebe provided a Victim Impact Statement, exhibit 2. She wrote:
'I am still discovering all the ways that the abuse I suffered has hurt me. It has set my life on the wrong course and destroyed the normal childhood teenage years and early adulthood that everyone deserves. I have never really been able to feel safe and comfortable in my own skin. All my life, the smallest thing such as making friends, I never could do because of the constant fear of them seeing me for how I see me'.
33Rhianna in her Victim Impact Statement, exhibit 3, wrote of how your offending against her:
'Has changed and turned my whole life upside down. I now face many challenges emotionally. These include not having self-worth, never feeling good enough. I have not experienced a normal childhood because of this crime. I am now always in fear of people, mainly males, hurting me'.
34She writes of constant fear and paranoia and mistrust of persons, and how this has impacted her relationship with her mother and her sisters. She has suffered post-natal depression and post-traumatic stress disorder and anxiety. She also had a most difficult pregnancy and she is in fear of that day in the future, when she will have to tell her daughter the true identity of her biological father, and moreover, why he is not in her life.
35Her mother Susie, in exhibit 4, writes of her anguish upon learning of exactly who it was she had brought into her family and how she has witnessed the impact of your crime. 'The accused destroyed that strong confidence, active girl that I used to know'. Susie has had to stand by her and watch the emotional and mental struggles of her daughter. She confronts an overwhelming sense of guilt on a daily basis, being unable to sleep and she isolates herself, falling into and out of chronic depression. She is, however, determined that her grand-daughter will be loved, will be nurtured and will grow up to be a fine young woman.
36Now whilst the impact of your crimes, Mr Hayes, must not be allowed to overwhelm the sentencing exercise, no one can be in any doubt that your offending has had a lasting, traumatic and enduring impact upon your victims.
37I turn now to your personal circumstances.
38You were born in 1975 and you are now 43 years of age. You were born in Bendigo and you are one of nine children.
39You witnessed your father being shot by your mother when you were eight years old and your mother was placed in custody shortly thereafter, although she was later acquitted of criminal charges on the basis that the shooting was an accident. You were placed in the care of Department of Health and Human Services and lived at welfare homes and foster placements. You described your mother as neglectful, physically abusive and an alcoholic.
40You attended various local primary schools and left during Year 8. You worked in fruit picking and truck driving before being unable to work, after October 2016, due to a work injury. You have three children with your previous partner. You report multiple incidents of abuse when you were in care as a child, including sexual abuse, but that your reports of abuse at the time were dismissed by police.
41You have no issues with drugs, but assert that you consumed alcohol to excess up until the year of 1983 and have been abstinent since then.
42You have one relevant prior. On 5 July 1994, on two charges of indecent act in the presence of a child, you received a six-month term of imprisonment, suspended for twenty-four months. The child was your four year old niece and you touched her vagina with your hand on three separate occasions, whilst you were staying at your sister's home in Mooroopna.
43After your relationship with Susie terminated, you returned to your mother's house in Shepparton for a couple of months and then started a relationship with a woman, who perhaps not surprisingly, also had two children. That relationship broke down and you were charged with contravening family violence intervention orders in respect of her. Thereafter, it seems you quickly found a new partner in October 2016. This relationship ended when you fled the jurisdiction.
44Tendered on the plea as exhibit 6KRN was a report from Gina Cidoni, consultant psychologist, dated 2 July 2019. She interviewed you by video conference over two hours. She had also interviewed you previously on
22 February 2017, when you were facing charges of contravening family violence intervention orders. During that interview, you denied this offending and in Ms Cidoni's view, presented with a disturbed and distressed profile, with a likely diagnosis of borderline personality disorder.
45Testing revealed your full scale IQ of 86, placing you in the low average range. Other assessment tools revealed elevation on the post-traumatic stress scales, which indicated positive symptoms for PTSD, arising from severe childhood trauma, including witnessing your father's killing by your mother, insecure attachment with her and reported sexual and physical abuse whilst in care. Ms Cidoni states:
'He is very sensitive and he has difficulties getting on well with others. He is overly responsive to their opinions. He feels he had a raw deal from life. He is suspicious and guarded, he tends to rationalise and blame others for his difficulties. With this profile, there are likely longstanding personality problems that predispose him to develop physical symptoms under stress.
He lacks insight into the origin and consequences of his behaviour. He is sexually maladjusted. He has experienced relationship instability. Low ego strength is indicative of poor psychological responses for coping with stress and is indicative of having chronic problems.’
46In the domain of your psychosocial adjustment, you were a victim of sexual abuse and other severe childhood trauma. There was evidence for psychopathy and mental health disturbance. Your scores on two predicted models for risk of sexual recidivism placed you within the high risk category for future sexual violence on the RSVP 20 and the median to high risk range on the Sex Offender Risk Appraisal Guide, otherwise known as SORAG.
47Whilst Ms Cidoni concluded that you presented with a borderline personality disorder, with a comorbid depressed mood and post-traumatic stress disorder, she was unable to posit a sufficient link, or indeed any link, between that personality disorder and this offending. In the course of the plea, I did not understand your counsel Mr Fitzpatrick to persist with any argument to the contrary.
48Ms Cidoni states:
'Regarding the offending, he exhibits denial with regard to one victim, but he made admissions about behaviours towards the second victim, albeit it would be impossible to refute in view of the pregnancy and his child. He has some unrealistic ideas and justifications, but he understands that the offending behaviour is wrong. At the time though, his impulses were stronger than any moral reasoning that may have been taking place.
Sex offender treatment and psychotherapy is essential to deter or address these impulses as they arise and to teach him alternative ways of coping. A psychiatric referral is also encouraged where pharmacological treatment can be effective in improving his moods and behaviour and reduce symptoms of impulsivity, depression and his perceptual impairments.’
49She concludes:
'He would experience hardship in a prison environment, because he is suffering a personality disorder that is chronic in nature and he experiences depressive episodes that are triggered by negative life effects. Individuals with borderline personality disorder by definition have severe impairment of interpersonal skills. They are impulsive and emotionally labile and are often seen as manipulative and commonly provoke others, leading to responses in others such as frustration and anger. This in turn may exacerbate his symptoms and suicidal risk may increase'.
50I turn to the submissions of counsel.
51On your behalf, Mr Fitzpatrick urged upon me your early history of trauma and deprivation and abuse. He urged upon me your good work record, the fact that you had three children with your first wife, and that you speak to them regularly. I am told that they stand by you. Your children from your first marriage have been the greatest source of comfort for you. You have been in custody for over 300 days. During that time you have completed courses in anger management and occupational health and safety. You have not been well, having issues with your thyroid. I am told there is a possibility of a cancerous growth and also that you are in receipt of medication for problems with your heart and for cholesterol. You have also been prescribed medication for your long-term anxiety and depression and you are experiencing night terrors. Your mother is not well, dying of cancer and her imminent death weighs heavily upon you, no doubt with many questions remaining for you unanswered.
52Mr Fitzpatrick submitted that your offending fell in the high range of offending of this nature. He submitted the offending, however, does not paint the complete picture of who you are. He urged upon me your plea as bringing with it the benefit of saving the community the time and the cost of a trial and most importantly, saving your victims the trauma of having to give evidence. I, of course, give you credit for your plea.
53He submitted that you have accepted the facts, which may be of some comfort to your victims. He submitted that your plea was indicative of remorse. During the plea you instructed your counsel to inform the Court that you are sorry for your actions. Mr Fitzpatrick accepted that the only appropriate disposition was a lengthy term of imprisonment. His ultimate submission was that in regard to the principle of totality, the sentence should not be crushing. You should be left with the prospect of parole.
54Ms MacDougall submitted succinctly that such offending calls for a lengthy term of imprisonment. Principles of general and specific deterrence and denunciation are to the fore with sexual offending, in a family context. She reminded me of the serious sexual offender provisions, whereby protection of the community becomes the primary sentencing purpose. She did not ask for a disproportionate sentence, although reminded me that this was a matter for the Court.
55Mr Hayes, you have pleaded guilty to most serious offending, as is made clear by the maximum penalties that have been imposed by Parliament, for the crimes of incest and indecent act with a child. In 2002, in the case of Director of Public Prosecutions v G [2002] VSCA 6, His Honour President Winneke observed that:
'This Court has in recent years had cause to remark on the prevalence of the crime of incest in the community. Its capacity to erode the decency of family life and the trust and confidence of its young victims. It is a crime which obliges the court to punish it with principles of general deterrence, denunciation and protection of young persons at the forefront of sentencing purpose. The insidious effects of the crime of incest upon its victims should be recognised by those who are privileged to exercise parental care in the community and the community is entitled to expect that those who exercise such care, will not abuse the trust and confidence reposed in them by those in their charge. Parents who fail to exercise the restraint which the community expects of them, and to give into their own sexual gratification, must expect to be severely and appropriately punished.'
56That, as I say, was an observation made in a case from 2002, seventeen years ago.
57In DPP v Dalgliesh [2016] VSCA 148 the Court observed that:
‘Incest is a crime of violence and must be so regarded. General and specific deterrence and denunciation must be given their proper emphasis. The long-term harm done to the victim, now better understood, must be given due weight in the sentencing calculus. Sentences must be commensurate with the seriousness of the breach of parental responsibility involved'.
58Mr Hayes, you had become part of your victims' families. Your offending occurred in the home where your victims were entitled to feel safe. As a parental figure, they had a right to look to you for guidance, parental care, for love and security. Instead, at the time of your offending their respective homes became the place where you preyed on them, for the purpose of your own sexual gratification. It is almost trite to describe such offending as a gross breach of trust.
59Your offending constitutes a fundamental abuse of parental authority, but it also represents a fundamental betrayal of all the community's recognised values of family, of decency and of simple common humanity. Your actions have deprived your victims of their childhood and have left them emotionally scarred. Your victims carry the weight of their past into all of their present, but hopefully not into their future.
60Your victim Rhianna has given birth to your daughter, who I am sure will be loved, but who also will be a constant reminder of your offending against her mother. There are going to be many challenges for the future. Each of the incest charges could be viewed, I find, as instances of violent rape. You used force and violence against both of your victims, in order to satisfy your lust. You had one face for your partners and another completely different face for your victims.
61The offences of incest were not momentary, although I can make no finding as to how protracted in time they were. Phoebe, at the tender age of eight years’ old was dragged into bedrooms, tossed like a rag doll onto beds and there subjected to both digital and penile penetration. In Charge 3, you continued to ejaculation, despite the screams of pain of your victim. In Charge 2, as you sat on your couch, you compelled her to take your penis in her mouth and to swallow your ejaculate before you dismissed her.
62You reduced that child to a mere orifice, whose sole purpose was to satisfy your sexual desire. You would refuse her food if she did not cooperate with your sexual demands. Threats of harm ensured her compliance, in addition to your use of brute force. When she had the courage to disobey you, or the temerity to try and avoid you, your response was violence, as Charge 4 makes clear. To teach a child of such tender years that her body is to be sold, to be bartered for food, is an act, Mr Hayes, of true depravity.
63Rhianna was older than Phoebe when you began to offend against her, but the nature of your offending was similar. You showed an utter disregard for her feelings, for her pain, for her emotional distress, for her physical autonomy and again, you reduced her to a mere vessel, an object for the satisfaction of your sexual desire. When she screamed at you to get off her, in Charge 13, you told her that she liked it and you continued until you were satisfied. You had unprotected penile vaginal intercourse which resulted in pregnancy. You tried to protect your position and avoid discovery by hinting to her mother that you believed that Rhianna was pregnant, an act of pure manipulative calculation.
64After denying, as was of course your right, any such offending in your record of interview and describing your victim as promiscuous, you were admitted to bail. You absconded, you fled interstate, changing your identity as best you could in a deliberate attempt to avoid justice.
65Charges 1, 2, 3, 9 and 13 are representative charges. You fall only to be sentenced for the offending captured in that charge and not the other represented instances of such offending. However, by virtue of being representative charges, you cannot claim that they were isolated incidents occurring only on one occasion.
66The objective gravity of your offending is grave indeed. You have demonstrated, in my view, little, if any, remorse. There is nothing before me to establish any mitigatory link between your early history and your personality disorders and this offending. Your moral culpability for the offending is in my view high.
67You are a sustained, persistent, sexual predator and violator of children. You are a danger to women and their female children and the community needs protection from you.
68In sentencing you, I must have regard to a range of different factors. I must protect the community from you. I must give effect to principles of both general and specific deterrence. I must deter others from behaving like you did and I must deter you from any repeat of such behaviour. I must express the community's denunciation of your conduct. I take into account the effect that your crimes has had upon your victims and I must have regard to current sentencing practices and the maximum penalties imposed by Parliament for the kind of offence that you have committed.
69I should also promote, if possible, your rehabilitation. I must try to balance your personal circumstances with the circumstances of your offending. Incest has been rightly described as an appalling crime. Clearly protection of the community, general and specific deterrence, denunciation are the primary sentencing considerations in this case.
70I give such weight as I can, to the factors which have been urged upon me in mitigation. I have regard to your traumatic childhood and deprivation. I have regard and give credit to you for your plea, which has both eventually validated your victims' account and saved them from the trauma of giving evidence. I have regard to your health concerns, your recently diagnosed personality disorder and the challenges this may present for you in a custodial setting. I have regard to the sentencing principle of totality. I am required by law to pass no longer sentence than is appropriate. However, the only appropriate sentence in your case is a substantial and lengthy term of imprisonment.
71You are to be sentenced as a serious sexual offender on Charges 1 to 3 and 5 to 13. Having regard to the principle of totality, I have moderated the orders for cumulation that I would otherwise have made.
72Mr Hayes, would you please stand?
73On Charge 1, incest: you are sentenced to a term of imprisonment of six (6) years.
74On Charge 2, incest: you are sentenced to a term of imprisonment of six (6) years.
75On Charge 3, incest: you are sentenced to a term of imprisonment of eight (8) years.
76On Charge 4, common assault: you are sentenced to a term of imprisonment of eighteen (18) months.
77On Charge 5, incest: you are sentenced to a term of imprisonment of six (6) years.
78On Charge 6, indecent act with a child: you are sentenced to a term of imprisonment of two (2) years.
79On Charge 7, indecent act with a child: you are sentenced to a term of imprisonment of three (3) years.
80On Charge 8, indecent act with a child: you are sentenced to a term of imprisonment of fifteen (15) months.
81On Charge 9, indecent act with a child: you are sentenced to a term of imprisonment of fifteen (15) months.
82On Charge 10, indecent act with a child: you are sentenced to a term of imprisonment of twenty-one (21) months.
83On Charge 11, indecent act with a child: you are a sentenced to a term of imprisonment of two (2) years.
84On Charge 12, incest: you are sentenced to a term of imprisonment of five (5) years and six (6) months.
85On Charge 13, incest: you are sentenced to a term of imprisonment of eight (8) years and six (6) months.
86On Summary Charges 1 and 2: you are sentenced to an aggregate term of imprisonment of fourteen (14) months.
87On Summary Charges 3 to 6: you are sentenced to an aggregate term of imprisonment of two (2) months.
88On Summary Charges 7 to 9: you are sentenced to an aggregate term of imprisonment of six (6) months.
89I direct that one (1) year of the sentence on Charge 1, two (2) years of the sentence on Charge 2, three (3) years of the sentence on Charge 3, three (3) months of the sentence on Charge 4, nine (9) months of the sentence on Charge 7, six (6) months of the sentence on Charge 9, six (6) months of the sentence on Charge 10, three (3) months of the sentence on Charge 11, six (6) months of the sentence on Charge 12, six (6) months of the sentence on Summary Charges 1 and 2 and three (3) months of the sentence on Summary Charges 7 to 19, run cumulative to each other and cumulative to the sentence on Charge 13.
90This makes a total effective sentence of eighteen (18) years. I fix a non-parole period of fourteen (14) years. Pursuant to s6AAA Sentencing Act 1991 (Vic), had you not pleaded guilty, you would have been sentenced to a total effective sentence of twenty-three (23) years, with a non-parole period of nineteen (19) years.
91Pursuant to s18(4), I declare that you have served 315 days of the sentence I have imposed upon you and direct that this be entered into the records of the Court.
92On Charges 1 to 3, and 5 to 13, you are sentenced as a serious sexual offender and I direct that this be entered into the record of the Court.
93Now pursuant to the provisions of the Sex Offender Registration Act, you are now a registrable offender Mr Hayes and the period of your required registration is for the rest of your life. My associate Ms Murphy will come across with Mr Campbell, so you can sign a document acknowledging your obligations.
94Mr Hayes, I am also making an order under s 464ZF authorising a forensic sample to be taken from you. I am told to tell you that when officers present to take the sample, which usually is by buccal swab, if you refuse - I am sure there will not be an issue, but if you refuse, the officers are entitled to use such force as is necessary. All right, thank you Mr Hayes. You may take him down. Is the informant here?
95MS JANKOVIC: What was that Your Honour?
96HIS HONOUR: Is the Informant here?
97MS JAKOVIC: Yes, Your Honour.
98HIS HONOUR: Yes. Preparing that brief must have been a challenge. I thank you for the work. I thank Ms Jankovic and I thank Mr Campbell, and most importantly I appreciate the continued dignity with which the family have conducted themselves. All right thank you very much, I will stand down.
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