Director of Public Prosecutions v Haynes (a pseudonym)
[2023] VCC 1400
•9 August 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT GEELONG & MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| William HAYNES (a pseudonym) |
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| JUDGE: | HIS HONOUR JUDGE TINNEY |
| WHERE HELD: | Trial (Geelong) Plea (Melbourne) |
| DATE OF HEARING: | Trial 22 - 30 May 2023 Plea 3 Aug |
| DATE OF SENTENCE: | 9 August 2023 |
| CASE MAY BE CITED AS: | DPP v Haynes (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2023] VCC 1400 |
REASONS FOR SENTENCE
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Subject: Incest x 3, Indecent act x 2. Verdict after trial. Victim the step grandchild of the prisoner; (Married to victim’s grandmother); offending in early 2000s when child staying with the prisoner and his wife. Incest; penile/vaginal, penile/oral and digital/vaginal and two indecent acts involving masturbation. Victim 8-9 on first occasion, around 10 on second and third. Accused in early to mid-50’s at time of offending; earlier offending from 1993-4 against stepdaughter (aunt of current victim). Dealt with subsequently in 2011 for incest and indecent acts. Prisoner 76 at time of sentence. Totality; Considerations in relation to past sentence imposed in 2011. Relevance of Past sentencing practices Sayer v The Queen [2018] VSCA 177; Stalio v The Queen [2012] VSCA 120; DPP v Carter (a pseudonym) [2018] VSCA 88; Verdins limb 5
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APKNIGHTANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. Moore | Office of Public Prosecutions |
| For the Accused | Mr T. Battersby | Dribbin & Brown |
HIS HONOUR:
1William Haynes[1], following a reasonably brief trial conducted earlier this year, on 30 May you were convicted by a jury of three charges of incest and two charges of indecent act.
[1] A pseudonym
2The plea was adjourned on your counsel’s request to obtain materials and was conducted last Thursday (3 August). You have been in custody since verdict.
3You are 76 years of age and have no formal prior criminal history. You were however sent to prison for 6 ½ years back in May 2011 for a number of serious sexual offences committed upon another family member in the early 1990s. That sentence was imposed for two offences of incest and one attempted incest as well as two indecent act offences committed against that relative when she was 12 or 13 years of age.
4I have been advised of the maximum penalties for the matters I am dealing with. Incest is punishable by a 25-year maximum term of imprisonment, indecent act by a 10-year maximum term. The standard sentence scheme does not apply to my task given the commission date of these offences.
5You do however fall to be sentenced on each charge as a serious sexual offender courtesy of the 2011 sentences which involved prison terms for ‘relevant’ offences.
6As I have indicated, the verdicts followed a trial and for that reason, there is no agreed summary. I must sentence consistent with that verdict.
7The complainant gave evidence and plainly she has been accepted as a witness of truth. Your counsel, Mr Battersby, accepted that was so, both in his written submissions and in his oral submissions placed before me. I see no need then to set out the full details of her evidence. The summary of prosecution opening for trial dated 17 February fairly sets out the main details of the individual offences and your victim gave evidence broadly consistent with that document.
8I will briefly summarise the facts so that my sentencing remarks and ultimate sentence might be understood by anyone who happens to access what will be anonymised reasons.
9Your victim Rachel Stevenson[2] was born in 1993. You met her maternal grandmother Ms Sheri Romero[3] in the early 90s, ultimately marrying Ms Romero in 1996. Ms Romero had three daughters from a previous relationship. One of those was Kathleen[4], the mother of Rachel Stevenson, your present victim. One of the other daughters of Ms Romero was Ms Christina Knight[5]. It was Ms Knight who was the victim of incest at your hands in the early 1990s for which you were imprisoned in 2011.
[2] A pseudonym
[3] A pseudonym
[4] A pseudonym
[5] A pseudonym
10You lived with Rachel Stevenson’s grandmother Ms Romero in [redacted] then [redacted] and the first incident occurred when Rachel was visiting the [redacted] house. She was eight or nine years of age. She told the jury she did not remember a time in her life when you were not around. That is the sort of presence you had in her young life (see TT44). She visited your home frequently. On the first occasion of offending, she believes her mother was likely walking on the beach down in Torquay as was her habit. Her grandmother she believes was downstairs, and Ms Stevenson did not believe her siblings were in the house. You came upstairs to her bedroom where she was playing with her doll. You approached her and asked if she liked babies and if she knew where babies came from (TT52/53). You said something about showing her. You sat on the bed and pushed her back. You began rubbing your penis between her thighs. You removed her underwear and penetrated her vagina with your penis, thrusting four or five times before withdrawing (see TT54-57). It was quite brief, and she does not know how far your penis penetrated, just that it did. She was scared at the time and the door was open.
11You stood up with an erection and pretended that your penis was hurt. You told her that she had ‘hurt her pa’ and that she did not want you saying to people that she had ‘hurt her pa’. You placed her hand on your penis and held onto it masturbating in that way. You made a sound at one point and the act stopped. You pulled up your pants and left the room. It seems likely you ejaculated but I do not know for certain. I cannot be satisfied of that beyond reasonable doubt but nothing hangs on that fact at all. Your victim noticed blood on her underwear the next day. So that conduct I have described is the subject of incest, Charge 1, and indecent act, Charge 2.
12Some time later, between 2003-4, the next act occurred. That was at the new house in [redacted]. Your victim was visiting your house, she believes during the school holidays. She was about 10 years of age. She was having a shower when you walked in uninvited into the bathroom. You told her lunch was ready and she said she was coming. You then stood and watched her. You then closed and locked the door. You said you would show her something that was going to make everyone love her when she was older (see TT78). It was something you said that she needed to know. You unzipped your pants and put your hands on her shoulders and guided her to her knees and then lifted her up slightly so she was at the level of your penis.
13You put your penis into her mouth moving your body and her head back and forth. She turned her head away after a short time and you then said words to the effect, ‘look what you’ve done, you’ve hurt your pa, you know what to do’ (see TT81). You grabbed her hand and placed it on your penis with your hand on top and had her masturbate you for a few moments until you ejaculated onto her shoulder and onto the floor. This is the subject of Charge 3, incest, and 4, indecent act.
14Charge 5 took place on another day during that same visit where you digitally penetrated the young girl as she pretended to be asleep in the lounge. She was in a makeshift bed with her sister Ebony[6] who remained asleep. Ms Stevenson woke up to find you sitting in a chair in the room. You approached, knelt down and kissed the two girls’ goodnight (see TT85). Each was seemingly asleep. Ebony was but Rachel was pretending, and you then digitally penetrated her vagina. It hurt her. She woke up the next day with blood on her underpants.
[6] A pseudonym
15On a later visit, in the course of a car trip, she told you that if you touched her again, she would tell (see TT87). The offending ceased.
16Ms Stevenson kept this to herself for many years. By 2021 she felt the need to deal with it and sort out some of the issues arising from your abuse of her including her over protectiveness in relation to her own children (see TT89). From the later evidence that she gave, it was apparent that by then, she had got her life in order. In January 2021, she disclosed the happening of improper acts to her aunt Robin and also to her aunt Christina, and to her, that is Rachel’s, sister Ebony. She did not go into any detail at all when she made these disclosures. She went to the police the next day.
17You were interviewed by the police on 4 February 2021 and you denied all the allegations. In the interview, so similar was her account when it was put to you, that you remarked that your first victim and second alleged victim must have got their heads together. They had not. It spelt out the underlying unity and the substantial probative value assumed by Ms Knight's evidence. However, I did not rule in the tendency evidence that the Crown sought to lead from the first victim, Ms Knight (see ruling made on 22 May 2023). I made it plain that that would not have been the case had she been joined in the indictment as a complainant. There was plainly substantial probative value and it all would have got before the jury in proof of charges laid against both Ms Knight and Ms Stevenson, had that been the nature of the indictment. However the indictment related only to Ms Stevenson and the Crown were seeking to lead your proven past conduct. Though of course that strengthened the tendency, I believed that there was an incurable prejudice arising from the jury learning of proven allegations and rightly or wrongly, it was this concern which led to my exclusionary ruling. Those portions of the interview dealing with Ms Knight and your contention as to concoction obviously were edited out and the very sensible forensic decision taken not to cross-examine in this area of concoction between aunt and niece. The jury therefore had no inkling of any of the conduct you had committed against the earlier victim.
18So much then for really what is only a brief summary of the factual material before me. I will sentence pursuant to the far more detailed sworn evidence of Ms Stevenson. Evidence which was plainly accepted by the jury. She was an excellent witness.
19As I have said, you went into custody on the day of verdict on 30 May.
20This was serious offending. Unsurprisingly the impact has been large and I turn to that impact now. Before doing so though, I observe the irony, if that be the right word, of her being cross-examined as to her credibility and reliability by reference to the ups and downs in her life, many of which she puts down to your abuse of her when she was a little girl. So drug abuse in 2015-16, totally removed from the relevant time frame and a very modest criminal history indeed.
Impact
21There is an impact statement from Rachel Stevenson. It is marked as Exhibit A on the plea and it makes for very sad reading. Predictably your conduct has had profound impact. How could it not? Your crimes have impacted upon so many areas of her life. It is a remarkable impact statement from a person who would rather view herself as a survivor than a victim. She speaks of carrying the burden and the sadness of this secret for 20 years. She laments the loss of her innocence. Your violation of this close relationship dimmed her prospects. She looked for a way out of life. Even in primary school she was self-harming and there was alcohol and then drug abuse to follow. Her formative years were significantly detrimentally affected. She says that she had been an excellent student but her school performance dropped off. She felt different from her peers. She felt unworthy and went on to use alcohol and drugs to numb her pain. As those around her thrived, she says she was just trying to survive. She lost the ability to trust others and she suffered lowered self-esteem. She doubted her self-worth and felt something was wrong with her. Her relationships were affected. Her mental health has been up and down. She says she never had a chance to become who she could have been. She had a strained relationship with her own mother and she is left with all manner of unresolved feelings on that score. Her mother has died and Rachel Stevenson was never able to explain to her mother what had derailed her own life. You took her childhood and her formative years and took her innocence. She says as a mother she has feelings of not being able to protect her own children. She describes in her impact statement forgiving you but doing so for herself not for your sake. You are now irrelevant to her. She has found it difficult putting the many and varied impacts into words in a written impact statement. That is hardly surprising but she did a mighty job. The impact statement finishes on something of a high note. She says that she has survived and is determined to restart her life with her own family and to try to sail beyond the deep impacts of your crimes.
22Well, your crimes have so deeply impacted upon virtually every aspect of her life. I do not let the impact swamp my due consideration of the various matters raised on your behalf. I do though take into account the impact as I am required to. It has been enormous. That is hardly surprising given the nature of these crimes. Incest is known to have dire impacts upon the victim and they are on full display in this case.
In mitigation
23Mr Battersby appeared for you both upon the trial and the plea. He had filed a chronology and outline of plea submissions dated 31 July 2023. There was a psychological report from Mr McMullen of the Austen Centre, a late filed report from Ms Cidoni and some personal references from friends and one family member.
24Mr Battersby informed me of your personal and family background. He took me to your educational and employment history. He made some submissions as to the sentencing purposes in play here as well as to the objective seriousness of the offending that I am dealing with. He took me to some of the detail of your 1993/1994 offending which was met with the 6 ½ year term back in 2011. He made some submissions as to your level of risk and your prospects of rehabilitation. Also as to delay and totality of sentence. The fact is there were few matters in mitigation. After all, you had run a trial which of course was your right, but having exercised that right, you do not have at your disposal any remorse or any of the very sizeable benefits flowing to one who has pleaded guilty. That is just the reality.
25In the course of the excellent plea conducted on your behalf, Mr Battersby relied principally upon the following matters in mitigation:
·Your age and state of health;
·The application of limbs 5 and 6 from the case of Verdins[7];
·The delay since the offending and some recognition to be given to the existence of the earlier sentence, leading to some moderation, as well as consideration being given to sentencing practices as existed closer to the offending (Sayer[8], Bidong[9] and Stalio[10] and Carter[11]).
[7] R v Verdins [2007] VSCA 102; 16 VR 269; 169 A Crim R 581 ('Verdins')
[8] Sayer v The Queen [2018] VSCA 177 (‘Sayer’)
[9] Bidong v The Queen [2022] VSCA 33 (‘Bidong’)
[10] Stalio v The Queen [2012] VSCA 120 (‘Stalio’)
[11] DPP v Carter (a pseudonym) [2018] VSCA 88 (‘Carter’)
26He conceded the seriousness of the offending and the inevitability of a lengthy prison term here but was urging the Court to impose what he described as a longer than ‘usual’ parole period. I observe that there was no such thing as a usual parole or non-parole period. He was arguing really for a decent gap between head sentence and non-parole period.
Prosecution
27The prosecutor Mr Moore had little need to make submissions which is often enough the position when defence counsel’s plea was quite sensibly pitched, as it was here.
Background
28I will turn now briefly to your background. Briefly as I have no reason not to accept the personal and family background placed before me. You were born in January 1947. You are now 76 years of age. You were between approximately 54 and 57 years of age at the time of this serious offending and 46 and 47 at the time of the 1993-1994 serious offending. You were born in Geelong and you were the eldest of five children. Your father is described as a hard man and there was some level of discipline in the family home. It may not have been the easiest of childhoods and I take it into account as far as I am able to though it was not submitted for one moment that any of the principles from the Bugmy[12]/Marrah[13]/Hermann[14] line of cases apply in this case. Your counsel was explicit in that concession. He said really it was more a sign of the times in which you were brought up. You left school in Year 9 and at the age of 14 you were expected to contribute wages to the household.
[12] Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (‘Bugmy’)
[13] Marrah v The Queen [2014] VSCA 119 (‘Marrah’)
[14] DPP v Herrmann [2021] VSCA 160 (‘Hermann’)
29As I understand it, you worked for one employer for over 40 years, working your way up from a very junior role as a bobbin boy. You then went on to work at a chicken farm and also as a handyman.
30You moved out of home aged 22 and you then married your first wife. You had three daughters together. They are all now well and truly grown up and the youngest is 49-year-old Martha[15] who resides in supported accommodation in Geelong. She has an intellectual disability and you were, prior to your remand, a frequent visitor. Some of the references speak of your commitment to her. That first marriage ended when you were about 33 years of age. At the age of 46 you formed that relationship with Rachel Stevenson’s grandmother Sheri Romero. As I mentioned earlier, she had three children herself from a previous relationship, and you offended against one of her daughters (your stepdaughter) Christina seriously. The reasons for sentence are before me and marked as Exhibit B on the plea. Indeed, they had at some point been marked as suitable for publication but plainly they are not in their present state, as they identify the victim. I will take action to remedy that fact. You were imprisoned for 6 ½ years for that offending and that sentence took effect from May 2011. I was told that you were paroled in October 2015 after serving four years four months. You have tried to reintegrate into society, joining a men’s shed group and pursuing your interest in restoring old cars. I have the references of the Belluccis[16], Ms Russo[17] and also your niece, Caitlyn Findlay[18]. They are strong references. The Belluccis’ reference speaks of some of your positive efforts including guiding people at the men’s shed, assisting the Bellucci’s themselves and of your devotion to your daughter Martha. Mr Battersby conceded though that it seems likely that the Belluccis do not know of the existence of the earlier sentence or any earlier criminality. That seems to be the only conclusion to be drawn from the 5th line of the reference where they say that your being found guilty of sexual relations with a minor came as a shock to them. Your niece's reference gives a better sense of some of the challenges that have existed in your life. Also the impact of divorce in your first marriage. She speaks of Martha’s sad predicament and your devotion to Martha. Your niece supported you at the time of the earlier proceeding, during your sentence, upon your release and she plainly still does support you. She speaks of the efforts that you have taken to re-establish yourself upon release from that earlier sentence. I have also Ms Russo’s reference. She also speaks of your qualities. She has also been a supporter of you. These various references disclose that you are far more than just the person who has committed these serious crimes. The Austen Centre report also gives a sense of some of the steps you have taken before and after that sentence. His Honour Judge Chettle dealt with you as someone who had not offended for 17 years. Of course that was the only basis upon which he could sentence you as it was the lay of the land then. You had of course offended more recently and the existence of a second victim targeted by you raises real questions as to your level of risk.
[15] A pseudonym.
[16] A pseudonym.
[17] A pseudonym.
[18] A pseudonym.
31There is the risk assessment in Ms Cidoni’s report but it is plain that you, to a degree, had misrepresented to her the previous proven offending and she did not have the sentencing remarks. She really should have. There was obviously some sizable attraction to young females such that you acted in this perverse way and there is no particular reason to think that such a mindset, for want of a better term, would just evaporate or go away. She speaks of the likelihood of paedophilia at the time and the level of risk that you currently pose.
32Your counsel in his written submissions had repeatedly spoken of your ill health or deteriorating or frail health. I asked Mr Battersby to take me to any evidence in that regard. He conceded that there was a paucity of evidence before me of that or of any increased burden arising from any physical health issues which you currently suffer. You do hold some concerns about ‘making old bones’ if I can use that term and that is because a number of relatives suffered fatal aneurisms. I was told that you had been scheduled for an MRI. I was told also that you take some anti-depressants.
33The written submissions explicitly conceded that none of the principles from the case of Verdins were enlivened in this case but Mr Battersby altered that submission in the running. He filed the report of Ms Cidoni on the very morning of the plea. I will turn to that Verdins submission soon enough.
34I was told that you feel a bit desolate and hopeless in your current predicament and you are concerned as to the inability to explain what has happened to your disabled daughter and worried that she may feel abandoned. Of course I do not ignore that fact. That was a matter of your personal circumstances but it was not being raised as increasing your burden of imprisonment. I asked specifically about that.
35You feel that you may spend the rest of your days in prison. Others speak of their sense that you may not survive the experience, but I note that similar sentiments were expressed by you in the lead in to the 2011 sentence. You are understandably anxious about the sentencing outcome. It would be strange indeed if you were not.
36You have no formal prior criminal history but the relevance of the subsequently dealt with matter is obvious enough. You cannot point to some isolated conduct in some narrow window of your life. On multiple occasions in relation to two separate young female victims about a decade apart, each of them a close family member, you have seriously offended sexually.
37For the reasons advanced by your counsel though, I cannot just ignore the fact that you received the sentence that you received back in 2011. It is relevant when I come to consider aspects of totality. I accept your counsel’s submissions in that regard.
38Indeed, it is the sign of a good plea that in the days since the plea was conducted, I have worked my way through the materials, and I have turned over in my mind the matters that he raised and taken a view the converse of some preliminary or provisional views stated by me in the course of the plea.
39I turn then to the matters that have been raised in mitigation on your behalf.
Age and poor health
40Firstly your age and state of health. Your counsel cites some case law dealing with the principles to be applied when sentencing elderly or frail individuals. I accept that he correctly sets out the principles. I have already spoken of the paucity of material touching upon any medical issues of note. Obviously enough though, your age is relevant. It is always a weighty consideration that an offender is likely to spend the whole or a very substantial portion of his or her life in custody and that they may not see life out of custody ever again. There can be some moderation of some of the purposes of sentencing in a relevant case. However old age and ill health cannot be determinative of my task. I do accept that at the age of 76 you may well die in prison. I hope that you do not. I do not ignore your age. You are 76 and you may yet have life beyond the prison walls. The age of an offender is clearly a relevant sentencing consideration and it must bear upon the severity of the effect of incarceration. Your age, however, can provide no justification for the imposition of an inappropriate sentence.
41It is clear that in an appropriate case, a significant period of imprisonment may be required despite an offender's advanced age, even in some settings, a term of imprisonment which may leave no or little expectation of any life beyond the prison walls. Of course, such an outcome is a weighty one and of course it is never arrived at lightly.
42Here your age is relied upon as a matter of some significance in the sentencing task. I do not ignore your age.
43A person of your age would commence any term of imprisonment with the risk that by virtue of your advancing age you may well not see life beyond a prison setting. Imprisonment would represent a larger proportion of your remaining life expectancy than for a younger person. I do not ignore that fact.
44Your poor health is far less weighty given the paucity of evidence on that topic. It seems more a particular of advancing age.
45However, I must not let these matters overwhelm other considerations. This was serious offending. It was always going to be rewarded with a sizeable term of imprisonment and it must still be. I must pass appropriate sentences and give appropriate weight to the relevant sentencing purposes. In this case denunciation, just punishment and general deterrence are now, and always would have been, significant sentencing purposes.
46Your age, the connected health issues and the passage of time I believe can lead to some reduction in the weight to be given to specific deterrence and community protection.
47I give appropriate attention to your age and poor health, but confidence in the administration of justice has to be maintained by the imposition of sentences which adequately reflect the gravity of your crimes. These were serious crimes with deep impact and there can be, as your counsel concedes, only one outcome, a lengthy prison term.
48I do not lose sight of the fact that each year of the sentence which I am shortly to pronounce would undoubtedly represent a decent portion of the period of life left to you. I accept it is easily possible that you may die in prison. However, that risk is I am afraid the consequence of a person of your age falling now to be sentenced for serious crimes committed upon your step-granddaughter many years ago. I take your age and health into account insofar as I am able to and I do apply the principles from cases such as RLP[19] and TRG[20], as well as the many cases discussed within those two decisions and also such cases as referred to by your counsel.
[19] R v RLP [2009] VSCA 271
[20] TRG v R [2011] VSCA 337
49I have said already as to your health, I see no material legitimately spelling out any particular increased burden arising from physical health issues.
50You hoped these matters would never see the light of day. Yes, there is a disadvantage in your being dealt with all these years later and after the 2011 sentence has lapsed. It is a disadvantage to you but also to your victim who has been affected for so many years by your crimes. There is no relationship between the two sets of offences other than you were targeting family members. They are separate serious sexual offences committed about a decade apart. Plainly the offending I am dealing with must be met with substantial punishment. I note that the sentences imposed for that past offending followed on from a guilty plea.
The expert reports and Verdins
51I turn now then to the expert reports. As I indicated, Ms Cidoni’s report dated 20 June 2023 was filed early on the very morning of the plea conducted last week. Mr Battersby had the report when he wrote his outline of submissions disavowing any reliance on any of the principles from Verdins (see paragraph 34 of the outline). He told me frankly that he had decided not to file and not to rely on that report as he did not view it as being of any assistance to you. He reconsidered that stance as he was entitled to, hence the late filing of that document.
52I have considered the material relied upon in support of the submission that the 5th and 6th limbs of Verdins are engaged. I have also considered other aspects of the report of Ms Cidoni.
53I am meant to engage in a rigorous examination when considering aspects of Verdins. Ms Cidoni was specifically asked to consider the aspect of increased burden (see paragraph 5). I have already commented on the fact that Ms Cidoni was left to rely on your description of the earlier offending for which you had been imprisoned in 2011. She was not, for whatever reason, provided with the sentencing remarks which really would have spelt out the true extent of your current minimisation of that offending (see paragraph 21 and 22). That was not her fault but conducting a risk assessment in that setting seems very strange to me at least. This was no ‘brain fade’ as you described it when you offended in 1993-4 (see paragraph 22). As I said in the course of the plea, that sort of nonsense would not even pass muster if offered up at the AFL tribunal, much less provide some sensible explanation for serious sexual offending committed by a mature man upon his own stepchild. Nor does alcohol provide any explanation at all. Your contention that you never put your penis into Ms Knight has to be seen in light of the attempts to do so and the lingual penetration that has been omitted altogether from your account to Ms Cidoni. Also the representative nature of one of the offences. It is plain that Ms Cidoni was to some extent in the dark in relation to the details of your past conduct and really she should not have been. You describe to Ms Cidoni your belief that your current victim is conspiring with others to fabricate the allegations for which you stand convicted. There is not even a hint of that in any of the materials. Ms Cidoni described you as acknowledging the past offending but displaying significant denial in relation to the current offences for which I must sentence you. As I say, your counsel concedes you were actually minimising those past offences in your discussions with Ms Cidoni. Well, why were you? What does that say about either your honesty in that interaction or at least your current level of insight? Your account to her and responses to testing administered by her are after all being relied upon in relation to the Verdins submissions made on your behalf. Those Verdins submissions are founded upon your experiencing high levels of anxiety likely exacerbated by your current predicament (see paragraph 62 of the report). There is then plainly a reactive component at the very least and as I said earlier in these reasons, it would be strange indeed if you were not currently very anxious as you await sentence. Well, Ms Cidoni expresses no opinion as to what impact the finalisation of the matter will have. There are the risk assessments that she conducted. The first of those is very strangely reported with an unusual statement at paragraph 66. I simply do not understand what she was indicating and nor did your counsel. Your overall risk is rated as moderate at paragraph 75 and that is without further intervention. You meet the diagnosis for an anxiety disorder (paragraph 79). You likely suffered from paedophilia at the time of the offending (see paragraph 84) and there exists the possibility of that disorder persisting given the existence now of two sets of offences and your denial (see paragraph 81 and 82).
54I will act on the ultimate risk assessment being one of a low-moderate risk (see paragraph 86). Your advanced age and likely lack of access to children suggests to me that the assessment is probably reasonably accurate. As to Verdins, counsel was relying on paragraph 62, 79 and paragraph 90. I raised with Mr Battersby my provisional view that those matters did not seem to engage the principles at all. He suggested that if I went to aspects of Mr McMullen’s report in the third last paragraph, that those matters read in conjunction with Ms Cidoni’s opinion would engage the two limbs. Well paragraph 90 in Ms Cidoni’s report is a very broad statement as to possibilities and not much more. Prison can do lots of things. Whether it will do or is likely to do is the critical issue and is pretty much unanswered in that report. The reference in Mr McMullin’s report to suicidal thoughts does not take me very far at all. I am prepared to give only some very modest weight to limb 5 of Verdins. It is but barely engaged. I will find some modest increased burden, that conclusion may be unduly favourable to you, but I am prepared to make it in the circumstances. I am not however satisfied on the balance of probabilities that there is a serious risk of imprisonment having a significant adverse effect on your mental health. You made predictions at the time of the earlier sentence and you came through it alive and well. Hopefully that will occur again. The 6th limb is simply not engaged here at all.
55I should add that I asked your counsel if he was suggesting that there was any increased custodial burden owing to the impacts of COVID 19 upon prisoners. He made it clear that he was not making any such submission owing to the recency of your remand and the relaxations in the restrictions which we have observed over the last couple of years. He told me he had seen you for three hours recently and has received no instructions touching upon any additional burden arising from the prison management of COVID-19 in your case.
Rehabilitation
56I turn now then to your prospects of rehabilitation. In a way I have perhaps previewed some of the difficulties in making any assessment of those prospects. It is hard to know how to calculate those prospects in this case. You seem to have none of the issues that so often impede rehabilitation such as drug use or sizable mental health issues. You have a good past employment record obviously enough. The problem is the nature of the offending targeting young family members sexually, and about a decade apart. There is no sensible explanation of it other than as found in Ms Cidoni’s report. Not your explanation by the way but hers. You were someone with paedophilic tendencies and may still possess them. You obviously have very limited insight, if your discussion of your past offending with Ms Cidoni is to be accepted as representing a genuine statement made by you. The sentencing judge, Judge Chettle, acted on the submission that you had been offence free for 17 years as he was bound to do, and that you had only offended against that one victim and were remorseful.
57There has nonetheless been a delay since this offending in the early 2000s and nothing else which has come to light other than that earlier matter. Mr Battersby made it clear that delay was not being relied upon in a Cockerell[21] or Merrett[22] sense, as it was in your past sentencing by Judge Chettle, where there were aspects of the matter hanging over your head for some years (see paragraph 20-22 of Judge Chettle's sentencing remarks).
[21] R v Cockerell [2001] VSCA 239; 126 A Crim R 444
[22] R v Merrett [2007] VSCA 1; 14 VR 392
58In this case there was no report by your victim. The matter did not come to light. It is commonplace for a victim not to report these sorts of matters. The significance of the delay is that in the period since this offending, you were dealt with for the other earlier offending. I accept the submissions made by our counsel as to the consideration which must be given to the earlier sentence. That period spent in custody is matter I cannot just ignore. It is part of your circumstances and it is relevant to the application of totality. So I accept the submissions made by your counsel citing Sayers case as approved in the case of Bidong.
59I also of course have a period of many years where nothing else has been alleged against you and the efforts that you have made to reintegrate back into the community.
60What though are your prospects of rehabilitation? You provide no real explanation for either sets of offending. Your offending against Rachel started when she was eight or nine years of age and involved penile/vaginal, penile/oral and digital/vaginal penetration. The offending about a decade earlier had likewise been serious including two incests and an attempted incest with one charge being laid on a representative basis. In that sense, this was not isolated conduct. The offending I am dealing with had a level of calculation to it obviously enough. There was a pretty wicked lead-in in relation to babies and how to make sure people will love her in the future. As indicated, I am prepared to act on the risk assessment placed before me. I do not judge the risk to be slight though one would expect that your advancing age and your likely lack of exposure to young children will reduce the ongoing risk. One plainly would have reservations about your being left in the company of any female child. Of course, family members will be armed with knowledge. Most, as I understand it, have distanced themselves from you anyway and the Sex Offenders Registration Act limitations and your reporting obligations may also serve to reduce your future risk upon your release. I also factor in the deterrent effect of the sentence I will soon impose as well as the very fact that it will be some years until you are released back into the community. You will be a good deal older. I am inclined to think the risk will reduce as you get older. I am prepared to find that you have realistic prospects of rehabilitation.
The Offences
61I am not going to say much more about the offending. Your counsel accepts the seriousness of the offending. He was not suggesting that any of the offending fell at a low level. He submitted that the incest fell towards the middle range and the indecent acts fell at a higher level than that. I have already summarised the facts. I must not doubly count breach of trust as it is inbuilt into to the offence of incest. I do accept your counsel’s submissions as to the objective gravity. They were discrete acts not set amidst a background of other offending and without many of the features of aggravation that often enough exist. I will return to discuss some of these matters again when I consider current sentencing practices.
Purposes
62I have to consider a number of purposes of sentencing.
63I must pay regard to your prospects of rehabilitation. I have already spoken of those. You have realistic prospects of rehabilitation.
64I am required to punish you for your crimes, I have to do that justly and proportionately. Punishment is an important purpose of sentencing in this case.
65I must also denounce your conduct. This is also an important purpose of sentencing. This was serious sexual offending against a totally innocent child by someone they trusted and someone who was trusted courtesy of the relationship that you had with her grandmother. It was serious offending and it must be roundly denounced. You should be ashamed of yourself. Instead you are actually quite remorseless. I am satisfied of that beyond reasonable doubt. It is not just a matter of me not being able to detect remorse. There is actually none.
66I must give some weight to specific deterrence. This relates to the need to deter you, or dissuade you, from offending in the future. It can be moderated here owing to your age, the absence of offending for many years and the findings that I have just pronounced in terms of your prospects of rehabilitation. It still has relevance to my task. I must deter you and that is still something that must weigh into the mix. I do accept though that specific deterrence would also in part be achieved by the lengthy sentence which I will soon impose. So there is plainly some moderation to that purpose.
67Community protection is usually of real importance given the nature of this offending. It must be given appropriate weight in my task. Again though, there can be some moderation owing to your age and the delay and the findings I have made as to rehabilitation. I say that whilst acknowledging that it is the principal purpose for each sentence to be imposed courtesy of the serious offender provisions that come into play. I do accept the statement from the Court of Appeal in the case of R v LD[23] to which I was referred as to the limited actual impact of the directive in s6D.
[23] R v LD [2009] VSCA 311
68General deterrence is however an important purpose of sentencing in this case and that is conceded to be so by Mr Battersby. I must try to deter others from doing what you have done; sexually offending against child family members. I must send a loud and clear message that this sort of conduct will be met with a sizeable prison sentence in an endeavour to deter future likeminded offenders.
69I must have regard to the maximum penalties. Incest is punishable, as I have said, by a 25 years' imprisonment as a maximum term. Indecent act has a 10-year maximum. I also must pay regard to the impact of the crimes and it is conceded to be large here.
Current Sentencing Practice
70I have to take into account current sentencing practices and I do. They are not a controlling factor; they are just one of a large range of matters which I must take into account. I have looked at the Sentencing Advisory Council Snapshot 242 of 2020 in relation to the crime of incest. I have looked also at the Snapshot relating to indecent act at 258 of 2021. I have also been referred by your counsel to Snapshot no.99 from 2010 for the crime of incest to give a sense of the sentencing practices that existed closer to the event.
71Statistics have inherent limitations. They will never drive my task. The more recent incest snapshot must be treated with caution. Those statistics are drawn from sentences passed from 2014-15 to 30 June 2019. That snapshot itself at ‘Endnote 4’ speaks of the ramifications of the case of Dalgliesh.[24] Much of the data would predate that decision. Further, of course, much of the data in that Snapshot would relate to matters where there has been a guilty plea.
[24] DPP v Dalgliesh [2017] HCA 41 (‘Dalgleish’)
72The sentencing practices for the crime of incest have undergone very significant changes in this State owing to the strong observations made in the cases of Dalgliesh. I say 'cases' as there were strong statements in the Court of Appeal in 2016[25] and that decision went on to the High Court, which was more concerned with the role of sentencing practice. The case was then remitted back to the Court of Appeal, where again strong statements were made by that court, this time in 2017.[26] The later case of Carter, to which I was referred by your Counsel, sets out some of that tortured chronology in relation to the cases.
[25] [2016] VSCA 148
[26] [2017] VSCA 360
73The crime of incest has always been viewed very seriously by the Parliament. The Courts have always spoken of its seriousness but according to Dalgliesh had for many years perhaps followed through with sentences which have betrayed a misunderstanding of the inherent gravity of the crime.
74In the decision of RBN v The Queen[27] the President of the Court of Appeal said the following:
'This court has often said that incest is a crime of great seriousness. It is an appalling crime involving the worst kind of breach of trust as between a parent and child and it is notorious that it causes long-term damage to the child victims, whom it is the parent's first obligation to protect.'
[27] [2011] VSCA 261
75That was obviously said in relation to parent/child. The same principles apply though in terms of any other familial relationship.
76Many cases from our Court of Appeal have re-stated or clarified some of these principles. Many of them are referred to in the remitted hearing in Dalgliesh, the cases of Sposito,[28] of Talbot,[29] of KHB.[30]
[28](Unreported, Supreme Court of Victoria Court of Appeal, Marks, Hampel and McDonald JJA, 8 June 1993)
[29] Talbot v R [2016] VSCA 218
[30] R v KHB [2004] VSCA 219
77The Dalgliesh decisions of our Court of Appeal provide clear statements as to the seriousness of the crime of incest. The Court of Appeal spelt out in detail the seriousness of the offence and the many reasons why it is such a serious offence. The first Dalgliesh decision dealt with the misconception that the courts had seemingly been invited to accept and had accepted as to crimes of incest not really being crimes of violence. The Court of Appeal stated that sexual penetration of a child is, by its very nature, an act of violence.
78The Court of Appeal concluded that current sentencing practice did not reflect the objective gravity of the offending or the moral culpability of the offender. The court spoke of the recurring themes in cases involving an offender with ongoing parental responsibilities towards a child under the age of 18, the recurrent features being extreme invasion of the victim's person, exploitation of a vulnerable child, violation of societal norms, long-term and severe impact, serious breaches of trust and the undermining of familial roots of society. They said that these features are common in incest occurring across the range of seriousness, but they went on to say that the factors distinguishing worst-case offending from mid-range offending was the nature and the extent of the offending conduct, its frequency and duration and the circumstances in which it occurs.
79The Court of Appeal in the original Dalgliesh decision concluded that the sentences imposed in the past devalued the objective gravity of the offence as informed by the egregious breaches of trust and the important consequences for victims. The Court of Appeal did not intervene in that particular case owing to the need to pay regard to current sentencing practice and the restraints they believe arose from that requirement. The High Court corrected that decision, remitted it back to the Court of Appeal which then significantly increased the sentences.
80Pre-Dalgliesh sentences are of very little weight indeed. So too statistics which predate those decisions.
81There have been many other strong statements in many cases since, including the cases of Trangle[31] and Boxer[32]. Your counsel referred me to the decision of DPP v Tewksbury [2018] VSCA 38.
[31] Trangle (a pseudonym) v R [2021] VSCA 210
[32] Boxer (a pseudonym) v R [2021] VSCA 300
82Quite aside from the change to sentencing practices brought about by Dalgliesh, one always has to be careful looking at other cases. Every case is to be dealt with on its own facts. Some cases involve a single isolated act, some involve a representative charge. Some involve multiple acts. Some involve multiple victims. Some involve a course of conduct where the offender falls to be sentenced in a manner to reflect the totality of the offending constituting the course of conduct sometimes spanning years. Well, as to the incests that I am dealing with, I am dealing with three quite distinct discrete acts, all of them quite brief, and not set amidst that backdrop of other offending.
83Each case is very different. So too is every offender, and what I have to is I have to exercise my discretion in your case. Plainly, one serious aspect of this incest offence is the age of the child. Rachel was eight or nine when you chose to penetrate her vaginally with your penis. There was obviously a level of calculation to your conduct as you raised the issue of babies. That is perhaps not that unusual. There is always going to be some preamble to the act. But the child was playing with her doll on her bed whilst a visitor in your home. Her grandmother, your wife was in the house at the time it would seem. Your warped conduct continued on with your claim to her that she had hurt your penis, this being a pretext to getting her masturbate you. The second incest was quite brazen, entering the bathroom while your wife was down in the kitchen, locking the door and then engaging in that warped preamble of teaching her something that would make people love her, namely oral sex. She submitted to you as you positioned her on the floor. Again, once that act finished, you claimed she had hurt your penis no doubt a reference to it being erect and again you caused her to masturbate you. You ejaculated on her.
84As to the final incest, she was next to her sister. That was the setting and you believed she was asleep. I do not treat that as an aggravating feature. Under the guise of kissing the girl good night, you then penetrated her digitally and it hurt her.
85You do not fall to be sentenced for a course of conduct or even on a representative basis. Nor was there any uncharged conduct in this case. I have these five charges. I have these five acts. They are contained. The impact here has however been profound.
86Unlike incest, where the breach of trust is built into the offence and is reflected in the maximum penalty, indecent act has no such inbuilt factor at all. It can be committed without any breach of trust. Here, of course, there was a very serious breach of trust and exploitation of your position as is conceded by your Counsel. That is a serious feature of aggravation in relation to those two offences. The victim was your step-granddaughter offended against in your home, when she was a visitor and in the manner described in relation to those indecent acts. Indecent act can cover a multitude of activity. It will never be constituted by acts involving penetration. It can be constituted by touching over the clothes. Well, this touching was of your bare penis with your controlling that event and in the setting of that large breach of trust. They are unmistakably serious crimes.
87I have mentioned the need to take into account current sentencing practices. Well, the term 'current sentencing practices' refers to those in effect at the time of sentencing, not those which existed at the time an offence was committed. While sentencing practices at the time of the offending are not ‘current sentencing practices’ for the purposes of the Sentencing Act, the principle of ‘equal justice’ may require a court to consider historical sentencing practices so far as they can be established, and if they demonstrate that a materially lesser sanction must have been imposed for a like offence than current sentencing practice would impose.
88In Carter there was detailed discussion of the effect of the Stalio line of authority and its application in cases involving incest. I will not set it out in full but what is plain is that where a discernibly lower sentencing practice can be gleaned, a Court is not required to sentence in accordance with that past sentencing practice. That past lesser sentencing practice is instead taken into account as one of the factors in the sentencing synthesis. The Court of Appeal in making some observations about Stalio said the following at paragraph 55 in Carter:
'Second, when read as a whole, the decision in Stalio does not (as the applicant contends) require a sentencing court when sentencing occurs after a substantial lapse of time from the offending to sentence in accordance with prevailing sentencing practices at about the time of the offending. Stalio requires only that ‘regard can be had to sentencing practice at the time of offending for the purpose of ascertaining just punishment in accordance with the principle of equal justice’ The weight to be given to this factor in any given case will depend upon its own circumstances, which will usually involve more than ‘simply ... the lapse of time.'
89They went on to say:
'In this case, there is more than the simple lapse of time. The applicant was interviewed in 2007, at a relatively early time after the offences, and presumably denied them. Had he admitted the two offences which he has since been found guilty of at that time, and pleaded guilty, he would have been sentenced according to sentencing practices which then prevailed. This approach to Stalio is consistent with the subsequent treatment of this isRobin in Bradley v The Queen, and, more recently, Thrussell (a pseudonym) v The Queen, where this Court (Maxwell P, Santamaria JA and Beale AJA) summarised the effect of Stalio in this regard in terms that:
"'the concept of equal justice' requires regard to be had to sentencing practices at the time of the offence if those practices can be demonstrated to have required the imposition of a materially lesser sanction for like offences than current sentencing practices would impose for the offence."'
90It is no part of my function to ignore the recent clear case law from our highest Courts as to the seriousness of the crime of incest, the extent to which the courts themselves have devalued the seriousness of the crime over the years and the strong need for an increase in sentences. It is no part of my function as a judge to pass an inadequate or inappropriate sentence mirroring what were clearly past completely inadequate and erroneous sentencing practices and attitudes to the crime. That would be an affront to common sense and would involve me ignoring current sentencing practices which plainly I must not do. In Carter there was a report to police in 2007 of 2003-4 offending with an interview in 2007 and a decision made not to prosecute and with a lengthy delay before that decision was reconsidered and all the ramifications of that chronology to be taken into account. It was not the simple lapse of time. Well, that does not exist here. We have in this case the entirely common setting of serious sexual crimes targeting a young family member which came to light only at a much later time when the victim felt ready and able to come forward.
91I do have to take into account the maximum penalties. These are crimes where the penalty has not altered. Parliament has always recognised the seriousness of the crime as is reflected in the maximum penalty that has not altered since your crimes were committed. In further recognition of the seriousness of this sort of crime, Parliament has introduced the standard sentencing scheme. I note the standard sentence for incest is 10 years and for sexual assault of a child under 16 is four years. You do not fall to be sentenced under the Standard Sentencing Scheme because that came into play for offences committed after 1 February 2018. That scheme has no role to play in my task.
92The Courts have, by way of the current sentences imposed for incest, at long last started to recognise the seriousness of the crime of incest. I do recognise though the fact that lesser penalties were imposed back closer to the event. The earlier snapshot is clear enough that there was a lower sentencing practice. Your counsel referred to a decision of one of my brother Judges in the case of Churchill[33] at paragraphs 44 and 45 of that decision, His Honour Judge O’Connell grappled with what were the seeming tensions in this approach, picking up references from the case of Carter and Stalio. I have set out those portions of Carter’s case. I do accept that there is a moderating influence to be reflected here in my sentences. I do have regard to that lower sentencing practice as existed. It is but one of the factors that go into my sentencing synthesis.
[33] DPP v Churchill [2023] VCC 300
93I have mentioned already that the statistics have inherent difficulties. Whatever might be said of them, they tell me nothing about the finer detail of those crimes represented in the data. They tell me nothing about the matters in mitigation or in aggravation. Many of the cases upon which either set of statistics were based would have been guilty pleas and all of the cases in the 2010 Snapshot and very many of the cases in the recent incest snapshot would have pre-dated Dalgliesh. Many of the cases that I have looked at involved guilty pleas and one where there was a finding of remorse. That is worth a great deal in all cases, but more so still in cases involving sexual assaults. Those things do not exist here. It was undoubtedly your right to run a trial, it is not an aggravating feature, but, having done so, you do not have at your disposal the very sizeable benefits of a guilty plea, especially one made in the course of the global pandemic and one accompanied by actual remorse. There is no remorse here.
94At the end of the day, I must deal with you for your crimes, taking into account the matters in mitigation and aggravation in your case.
95One can probably always construct a more serious example of any crime. Crimes have differing aggravating features. One can always envisage a worse case of any crime, including crimes such as these of incest and indecent act. That is not the best way to judge the seriousness of the actual crimes before the Court. The absence of some aggravating features says very little indeed about the seriousness of the actual offence before the Court, especially where the crimes before the court have their own aggravating features present (see the case of Harlow[34]).
[34] Harlow v The Queen [2017] VSCA 234
96Viewed objectively, this was plainly serious offending. That is conceded. Incest is inherently a serious offence. That is conceded. Plainly these examples of incest do not fall anywhere near the very highest levels but they still represent serious enough examples of the offence for the reasons I have announced. They certainly are not low-level examples of the offence. Nor does your counsel suggest they are and I am prepared to accept your counsel’s characterisation of where they fall on the spectrum of offence seriousness.
97My sentencing task follows on from a trial, so as I have said, my task does not have some of the powerful mitigatory factors that often enough exist.
Totality
98I take into account the principle of totality of sentence and I have engaged in a last look at the sentences imposed by the court and the total effect of them and I do that in an endeavour to guard against the imposition of a crushing sentence upon you and to ensure that the overall effect is commensurate with your overall criminality. Your overall criminality was high.
99I pay regard to the fact of the earlier sentence imposed upon you in the manner discussed in the cases of Sayers and Bidong. There is no temporal or other relationship between this offending and the offending for which you were previously imprisoned. They are about a decade apart and they involve a different victim but I just cannot ignore the sentence that you served. As I say, I have regard to the manner in which to deal with that previous sentence as discussed in Sayers and Bidong.
Sentence
100To comply with the principle of totality of sentence, I have to determine an appropriate sentence for each of these individual charges, taking the applicable sentencing considerations into account. I then must nominate the highest term as the base sentence. I must determine the extent to which there should be cumulation regarding the other sentences. Then there is that third step. It is the taking of that 'last look' which I have referred to a short time ago. I am required to 'stand back' and I am required to consider, in light of the principle of totality, what is an appropriate overall total effective sentence in your case.
101If applying the first two steps produces a total effective sentence that infringes totality, then what I then must do is moderate the extent of cumulation to ensure that the total effective sentence complies with this important principle.
102The serious offender provisions of the Sentencing Act come into play for every sentence I am about to impose. The ramifications are that I may impose a disproportionate sentence to achieve that goal, pursuant to s6D(b) of the Sentencing Act. I will not be doing that in this case.
103I am required though by those provisions to treat the protection of the community as the principal purpose of sentencing. I cannot just ignore that provision but I do accept your Counsel’s submissions as to the limited practical effect of that provision as discussed in that Court of Appeal of LD.
104In the absence of a direction otherwise, the sentences imposed would be served cumulatively or consecutively upon each other and that is because the presumption of concurrency is deliberately removed in this area. Well, totality, though modified as it is here, is still an important consideration. More so given the existence of that earlier sentence. I do not ignore the serious sexual offender provisions but what sentence is required to protect the community will necessarily depend upon my assessment of the risks that you present (see R v RNT[35]).
[35] [2009] VSCA 137 at [16]
105I have the relationship between Charge 1 and 2 and then Charge 3 and 4. Those two sets of offences occurred on the same occasion. By that I mean there is the pair of offences on the one day when she was eight or nine being the penile/vaginal incest and the indecent act, and the pair of offences a year or so later on the one day when there was penile/oral incest and the indecent act involving the masturbation. The final charge of incest occurred within a matter of days of Charges 3 and 4 it would seem. It took place during that same visit but it was of course a quite separate serious crime involving a different form of penetration altogether.
106I am dealing with you for five serious sexual offences. They were each serious separate criminal acts, no doubt each having a role to play in the large overall impact disclosed in the sad impact statement placed before me.
107Sending a person to prison is always a disposition of last resort. Well, your counsel conceded the need for sizeable prison terms in this case. That was an obvious and sensible concession. He conceded that I must impose terms of imprisonment, with some level of cumulation in relation to each sentence imposed, but with a lesser degree of cumulation for the indecent acts given the temporal connection to the incest offending on that same day, and that I would arrive in this way at a sizeable head sentence and I then would need to fix a non-parole period. He was asking for a decent gap between the head sentence and the non-parole period, I infer, to offer you some hope of life beyond prison.
Sentence
108I move now then to pass sentence. You will lose track of these numbers and the relationship between the sentences and orders for levels of concurrency and what it all means to you. Rest assured I will explain the total effective sentence towards the end of my remarks.
109I would normally have you stand up but I will not, given that we are using the
audio-visual link.110On Charge 1, the charge of penile/vaginal incest, I convict and sentence you to seven years' imprisonment. This will be the base sentence.
111On Charge 2, indecent act, I convict and sentence you to two years' imprisonment.
112On Charge 3, this is the penile/oral incest, you are convicted and sentenced to 6 ½ years' imprisonment.
113On Charge 4, indecent act, I convict and sentence you to two years' imprisonment.
114On Charge 5, of digital/vaginal incest, I convict and sentence you to 6 ½ years' imprisonment.
Serious offender declaration
115I have sentenced you as a serious sexual offender in relation to each one of these charges.
Extent to which I otherwise direct concurrency (s6E)
116Now, in the absence of any direction otherwise, each sentence that I have pronounced would be served on top of each other, that is consecutively. Well, plainly I must direct otherwise, or the sentence would be completely unwieldy. Totality, though it is modified here, demands a degree of concurrency.
117The base sentence as I have pronounced is the seven years imposed on Charge 1.
118I will now set out the extent to which I otherwise direct concurrency under the provisions of s6E of the Sentencing Act. I direct that:
· 20 months of the sentence imposed on Charge 2;
· 4 ½ years of the sentence imposed on Charge 3;
· 20 months of the sentence imposed on Charge 4;
· 5 years 2 months of the sentence imposed on Charge 5;
is to be served concurrently upon the base sentence and each other.
119It follows that under s6E of the Sentencing Act, I otherwise direct concurrency to that extent. It is my intention then that there be that additional four years cumulation on top of the seven-year base sentence imposed on Charge 1.
Total Effective Sentence
120These orders by my calculation result in a total effective sentence of 11 years imprisonment.
Non-Parole Period
121I direct that you serve a period of 6 ½ years before becoming eligible for release on parole.
Section 18
122You have spent 71 days in custody by way of pre-sentence detention and that period is declared pursuant to s18.
Sex Offenders Registration Act
123You are already required to comply with your obligations under the Sex Offenders Registration Act for the remainder of your life courtesy of the sentences imposed in 2011 by Judge Chettle. I am, though, sentencing you on a number of Class 1 and 2 offences, and that very fact generates the same obligation. Though I do doubt the utility of serving any further paperwork in this case, as you are already subject to lifetime reporting obligations, I believe I am required as a matter of law to do this and to explain the effect of the impact of the sentences that I am imposing. It is incumbent then on me to serve the paperwork again. You will be liable to report for the rest of to your life courtesy of today's sentence irrespective of what has happened in the past. Now, let me just see. I understand that in that room there is some paperwork. I will just ask if that is present and if that could be handed to Mr Haynes please.
124OFFICER: Yes, that is correct.
125HIS HONOUR: Thank you. Now, in that room, as I understand it, there is some paperwork, and I will ask you in a moment to sign that. All you are really doing is signifying that you have received notification of your obligations under this legislation.
126So, Mr Battersby, it is a bit awkward, we have got you here and him there and I am on the Bench here with you. Mr Moore is joining the link by way of audio-visual link. What is in that room is the paperwork. I am not expecting he is going to sit there and read what we know is very lengthy paperwork. It is very lengthy. He has had it before, of course. It is simply him acknowledging by his signature that he has been served with the relevant paperwork. Did you have any need to discuss that with your client at all or not?
127MR BATTERSBY: No, Your Honour.
128HIS HONOUR: All right. Well, you have heard all that then. It is just a formality that I need to go through and I would ask you then, Mr Haynes, to sign that document. If you could do that now please.
129OFFENDER: On the back, right?
130HIS HONOUR: It is p9. And I wonder if the relevant prison officer would witness that in the appropriate place on p9 please.
131So I wonder if the prison officer - that last page is the acknowledgement. If that can be removed, p9, and taken back to the office and Mr Haynes, he receives the balance of those pages. So he gets the first eight pages. So if you could remove the ninth page please.
132Let me just see if there is anything else I need to deal with.
133Anything else from your perspective, Mr Moore?
134MR MOORE: No, Your Honour.
135HIS HONOUR: From your perspective, Mr Battersby?
136MR BATTERSBY: No, Your Honour. As Your Honour pleases.
137HIS HONOUR: Look, I will revise these reasons once I get them back. I generally do them on the day that I get them. It sometimes takes a bit of time to get them back and once they are revised, I will get them to the parties. They will be anonymised obviously enough and let me just see. All right. I understand that the published reasons in relation to the other victims' past sentencing exercise have been taken down from so I do not think I need to do anything further in terms of that. They were not suitable for publication and they should not have been published but they were and they are now removed.
138MR BATTERSBY: As Your Honour pleases.
139HIS HONOUR: Well, that completes the matter then. I mean you will - - -
140MR BATTERSBY: I will be speaking with Mr Haynes in the coming days.
141HIS HONOUR: You will be speaking to Mr Haynes.
142MR BATTERSBY: Yes.
143HIS HONOUR: Mr Haynes, Mr Battersby will be in touch with you in the not-too-distant future, he will be discussing what has taken place here today and your rights in relation to the sentence and other things. So he will be in touch with you in due course, all right?
144So that completes the matter then and I disconnect the link them at this stage. So thank you for making yourself available, Mr Moore. I will disconnect the link now then. Thank you.
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