Director of Public Prosecutions v Heber (a pseudonym)
[2025] VCC 1069
•29 July 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
SEXUAL OFFENCES LIST
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NEAL HEBER (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE GEORGIOU | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 April 2025 | |
DATE OF SENTENCE: | 29 July 2025 | |
CASE MAY BE CITED AS: | DPP v Heber (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1069 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Trial; guilty verdicts; sexual penetration of a child under 12; sexual penetration of a child or lineal descendent; sexual assault of a child under 16 years of age; sexual offending against biological daughter and step daughter; victims aged between 9-11 and 5-7 years old respectively during offending period; accused Fijian national; factual dispute regarding HSV-2 transmission; high moral culpability; objectively serious offending; serious sexual offender; lack of remorse and insight; course of conduct charges.
Legislation Cited: The Queen v Verdins (2007) 16 VR 269; Guden v R (2010) 28 VR 288; Clarkson v R (2011) 32 VR; DPP v Talbot [2024] VSCA 321; Reid (a pseudonym) v R [2014] VSCA 143; Crawford (a pseudonym) v The Queen [2018] VSCA 113; McPherson v The Queen [2021] VSCA 53
Cases Cited:Crimes Act1958 (Vic); Sentencing Act 1991 (Vic); Criminal Procedure Act 2009 (Vic); Sex Offenders Registration Act 2004 (Vic).
Sentence: Total effective sentence of 17 years and nine months’ imprisonment, non-parole period of 12 years and six months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J. Cohen | Office of Public Prosecutions |
| For the Accused | Mr P. Kounnas | McNally & Gleeson |
HIS HONOUR:
Introduction
1Neal Heber,[1] on 6 December 2024 a jury found you guilty of:
(a) Seven charges of sexual penetration of a child under 12 years of age, being Charges 1 to 7, contrary to s49A(1) Crimes Act 1958.
(b) Five charges of sexual penetration of a child or lineal descendent, being Charges 8, 10, 11,12, 13, contrary to s50C(1) Crimes Act.
Charges 10 and 11 are course of conduct charges.
(c) One charge of sexual assault of a child under 16 years of age, Charge 9, contrary to s49D(1) Crimes Act.
Charge 9 is a course of conduct charge.
[1] A pseudonym.
2The victim of Charges 1 to 7 is your stepdaughter, Freda Heber.[2] The victim of Charges 8 to 13 is your daughter, Alison Heber.[3]
[2] A pseudonym.
[3] A pseudonym.
Circumstances of Offending
3At the time of your offending, you had the care of Alison and Freda under an order of the Department of Families, Fairness and Housing (DFFH).
4Alison Heber was born in October 2009 and was between nine and 11 years of age at the time you offended against her. Her mother is Sally McMasters.[4] You are her biological father.
[4] A pseudonym.
5Alison spent her early childhood living with her mother, her mother’s partner, Gus Heber,[5] and her younger half-sister, Freda Heber.
[5] A pseudonym.
6Following DFFH intervention, Alison was removed from her mother’s care, and on 22 November 2018, was placed in your care and began to live with you, your partner, Polly Crayton,[6] and your daughter Sarah Heber, at your unit in Wallan. Sarah was born in August 2019. Alison remained living with you until 22 December 2020.
[6] A pseudonym.
7Freda Heber was born in August 2013 and was between five and seven years of age at the time of your offending against her. Her biological parents are Sally McMasters and Gus Heber. Freda, as I have stated, is Alison’s half-sister.
8Freda was removed from her mother’s care following DFFH intervention and was initially placed with foster carers.
9On 11 June 2019, Freda was placed in your care and lived with you, Ms Crayton, Sarah and Alison until about 30 October 2020, when she was removed from your care by DFFH.
10Your unit at Wallan had two bedrooms. Freda and Alison slept on bunk beds in one of the bedrooms. Your partner slept in the other bedroom, with Sarah sleeping in a crib in that room. You would at times sleep in that bedroom with your partner and at other times sleep on a mattress set up on the floor of the lounge room.
Offending against Freda Heber – Charges 1 to 7.
11Charge 1 occurred on an occasion between 11 June 2019 and 30 October 2020 in the garage of your home. You and Freda were present in the garage. You moved aside some tools and lifted her up and lay her down on some type of surface. You then pulled down Freda’s pants and placed your penis inside of her vagina. After you removed your penis from her vagina, Freda saw what she described as 'green pus' coming from your penis. The penetration caused her vagina to be sore.
12Charge 2 occurred between 11 June 2019 and 30 October 2020 in the lounge room of your unit. On this occasion, you lay Freda on the mattress and placed your mouth on her vagina. You then licked and penetrated her vagina with your tongue. You then inserted your finger into her vagina. This act of digital penetration forms the basis of Charge 3.
13Charge 4 occurred between 11 June 2019 and 30 October 2020, when you and Freda were in your bedroom. On that occasion you sexually penetrated Freda by putting your penis into her vagina.
14On another occasion between 11 June 2019 and 30 October 2020, when your partner and Alison had gone out shopping, you called Freda into the lounge room. You were on the mattress on the floor. Once she was in the lounge room, you forced your penis into Freda’s mouth and held her head, pushing it up and down onto your penis. This conduct forms the basis of Charge 5. On this occasion you also penetrated her vagina with your penis, Charge 6, and penetrated her vagina with your tongue, Charge 7. The incident stopped when your partner and Alison returned home from the shops. Freda then went to the toilet as her vagina was stinging.
15There were other instances of penile penetration of Freda’s mouth and vagina that are alleged to have occurred when she was living with you. However, they are not charged incidents, and you do not fall to be punished in relation to them.
16On 26 October 2020, Freda disclosed to staff at her school that her vagina was sore and itchy and that she had wet herself. She explained that you and your partner had put flour on her vagina. DFFH staff were notified and you were told by them to take Freda to the doctor, which you did.
17On 29 October 2020, a doctor from Wallan Medical Centre contacted DFFH. He informed them that he had examined Freda and observed lesions and blisters on her vagina. Testing he performed confirmed that Freda had Herpes Simplex Virus - Type 2, a sexually transmissible disease.
18Freda was removed from your care on 30 October 2020 and placed in foster care.
19On 18 December 2020, Freda said to her foster carer, Ms Dent, 'my dad has sex with me and Alison. Ms Dent asked her what she meant, and Freda said that you touched and licked her vagina and that of Alison. Freda was taken to police by her foster carer and subsequently made recorded statements (VAREs) on 21 December 2020 and 19 March 2021.
Offending against Alison Heber – Charges 8 to 13
20On 22 December 2020, Alison was also removed from your care by DFFH and placed in the care of Ms Dent. On 25 February 2021, Alison wrote a letter to Ms Dent stating, 'my dad was having sex with me'.
21The offending against Alison was also reported to police and Alison made statements to them on 1 March 2021 and 12 July 2022.
22Alison told police that when she was living with you, you would hug her in a way that made her feel uncomfortable. After some time, you commenced to touch her on her vagina.
23Charge 8 occurred between 22 November 2018 and 22 December 2020, when you climbed into Alison’s bed in the middle of the night and touched and rubbed her vagina with your finger. Alison stated that you touched the inside of her vagina with your finger.
24Charge 9 is a course of conduct charge. The offending occurred between 22 November 2018 and 22 December 2020, in the loungeroom when you were alone with Alison. During that period, you would pull your penis out from your pants and cause Alison to rub it. Alison tried to resist by saying 'no' and pull her hand away, but you would take hold of her hand with your hand and use it to rub your penis. The conduct would go on for about five minutes before you would get up or tell Alison to leave. You engaged in this conduct with Alison between two and three times a week over the offending period.
25You also touched Alison on her chest and on her bottom. You are not charged in relation to that conduct.
26Charge 10 is a course of conduct charge. Between 22 November 2018 and 22 December 2020, you penetrated Alison’s vagina with your penis. You knew that Alison was your lineal child. This conduct would occur in both the lounge room and in the garage of your home. It is unclear how often this conduct occurred over the offending period other than Alison saying it happened 'multiple times'.
27Charge 11 is also a course of conduct charge, occurring between 22 November 2018 and 22 December 2020, and involved, at times when the conduct in charge 10 occurred, you also putting your penis into Alison’s mouth. Again, such conduct occurred on multiple occasions.
28Between 20 December 2020 and 22 December 2020, and after Freda had been removed from your care, you took Alison for a ride in your car. It was dark and you drove to an area described as a 'farm area'. You stopped the car and told Alison to get out of the car. She did as she was told. You then told her to take off her pants. After she did that, you picked her up and lay her on the tray of the open boot. You then penetrated her vagina with your penis. This conduct forms the basis of Charge 12. Charge 13 is based on you then putting your penis into Alison’s mouth before you removed it and ejaculated onto the ground.
29On 10 March 2021, Alison underwent medical tests that found she had an asymptomatic HSV-2 infection, and an active infection of Trichomonas Vaginalis, a disease which is nearly always sexually transmitted.
30During their investigations, police obtained your medical records. Those records showed that on 20 October 2018, you underwent screening for sexually transmitted diseases. The results of those screens revealed that you had positive serology for HSV-2, chlamydia and syphilis. The records show that you then received treatment including oral antibiotics and three intramuscular antibiotic injections in your buttocks.
31You were interviewed by police in relation to Freda’s allegations on 23 December 2020. You denied the offending. You also denied having been diagnosed with sexually transmitted diseases in October 2018 and denied receiving any treatment for such diseases. You told police that you had a blood test after your doctor advised you that your former partner, Ms McMasters, had tested positive for a sexually transmitted disease, but that your testing did not reveal anything.
32On 8 March 2021, you were interviewed by police in relation to Alison’s allegations. You denied offending against Alison.
Victim Impact Statements
33Tendered at the plea hearing were victim impact statements of Freda and Alison. They both set out in clear and moving language the profound impact your conduct has had on each of them. They were read in open court by the learned prosecutor.
34Alison stated that children are meant to have blind faith and trust in their parents and in their ability to nurture and support their children. She states she feels 'horrendously let down' by you, who had a responsibility, as her father, to ensure she was safe and cared for. She further states that your manipulations and passive aggressive tactics have affected her severely. Alison states she was blinded by your words and actions as you often preached that you were protecting her when you asked her to participate in your offending conduct.
35Alison states that her home life has changed dramatically as she no longer has any contact with any of her biological family on your side.
36Notwithstanding the terrible abuse to which she was subjected, Alison is nevertheless able to speak very positively of her foster carers and her counsellor whom she has been seeing over the last four years. Alison has managed to focus on her academic studies and has achieved high marks which she attributes to the care she is receiving from her foster parents and teachers.
37Freda states that when you commenced your offending against her, she felt scared and did not think there was anyone she could talk to about what was happening. When she finally told her teacher, she states she felt good because there was someone else who knew about what you were doing and who could help her. When she was eventually placed with her foster carers, Freda states she felt loved and safe and that no-one was going to hurt her. It was a relief to her not to have to live with you.
38Freda also states that when you were offending against her, she suffered from nightmares about what you were doing to her which continued even after she moved in with her foster carers. She continues to have nightmares and remains frightened of you.
39A letter from Ms Dent was also tendered, without objection, as to her observations of Alison and Freda when they came to live with her and her husband. Ms Dent states that both girls experienced horrific nightmares which caused disruption to their sleep and in turn impacted upon their schooling. Alison was particularly unsettled in Year 7 and the beginning of Year 8. However, Ms Dent confirmed that Alison is now excelling at school and that both girls are now considered to be a part of the Dent family.
Personal Circumstances and Background
40You were born in Fiji in December 1985. You were between 32 and 35 years of age when you offended. You are the second child in a sibship of four. You have three sisters.
41You report having had a strong relationship with your parents. However, you state that your early life in Fiji was difficult because of the low socioeconomic circumstances in which you were raised. Your father died when you were six years old after complications with diabetes, a condition from which you also suffer. Following the death of your father, your mother worked at a supermarket to support you and your sisters. You were primarily raised by your maternal grandparents.
42When you were 10 years of age your mother re-partnered. You report a positive relationship with your stepfather when you were younger, but you came to believe that he was taking financial advantage of your mother.
43Your mother died in 2021. Since then, you have not had any contact with your sisters or your stepfather.
44You have had limited education, completing only Grade 3. You reported little interest in education, and you were frequently absent from school. You continue to have difficulty with reading, writing and spelling.
45Upon leaving school, you commenced work in your grandparents’ sugar cane field. You also obtained some work in a mechanic’s workshop.
46You came to Australia at the age of 24. You initially obtained employment with an engineering company. You have since then worked at a car wash, in the storage department of Coles, in furniture removal and delivery, and in various other low skilled jobs. Before the current offending you had casual employment as a furniture removalist.
47You have obtained vocational qualifications that include obtaining a truck driver’s licence, a security licence, and a first-aid certificate.
48In 2007 you married Sally McMasters. You report that this was an arranged marriage. You separated in 2011 because of difficulties in your relationship. You and Ms McMasters had only the one child, Alison Heber.
49You report that Ms McMasters struggled with drug use and neglected Alison’s basic needs. This resulted in Alison being removed from her care. Alison was eventually placed in your care after you completed a parenting course and other requirements set by DFFH.
50You also have two daughters, approximately eight and 10 years of age, from another relationship. You have not had any contact with those daughters, I was told, for many years.
51You also have another daughter, Sarah, through your relationship with Ms Crayton. You report that Ms Crayton has been deemed by DFFH to be unfit to care for Sarah, and Sarah has since been placed in kinship care with Ms Crayton’s sister.
Previous court appearances
52On 1 December 2017, at Heidelberg Magistrates Court, for two offences of persistently contravening a family violence order and a charge of contravening a family violence final intervention order, without conviction your case was adjourned for a period of six months.
53On 12 October 2016, at the Bairnsdale Magistrates Court, you were convicted and fined $700 for offences of driving while your authorisation was suspended, and contravening a family violence interim intervention order.
54On 5 December 2013, at Heidelberg Magistrates Court, on a charge of unlawful assault, without conviction your case was adjourned for a period of two years with a requirement that you undertake an accredited men’s behaviour change program.
55You have never before been convicted of any sexual offence.
Psychological report
56Exhibit D1 is a report dated 24 February 2025 prepared by Daniella Kocic, psychologist. Ms Kocic assessed you on two occasions in February 2025.
57During the assessment you denied experiencing sexual attraction to children, prepubescent and pubescent individuals, stating that you preferred partners close to your age. You also denied a history of sexual health issues.
58You do not have a history of mental health issues or receiving any mental health treatment. However, in the aftermath of the current charges, you reported struggling with your mental health, particularly relating to symptoms of depression and anxiety. You said you saw a counsellor on five occasions in 2021, but you were not able to recall the specific clinician or clinic you attended. You suffer from high cholesterol which is managed through medication, and you reported a history of taking insulin to manage your diabetes. You stated that you last took insulin in 2021.
59Regarding the current offences, you maintained your innocence. Accordingly, Ms Kocic did not discuss the specific allegations with you. You denied experiencing significant stressors around the time of these offences and felt that overall things were going well. You did not experience any financial difficulties, and said you were receiving strong support from your family, particularly from your mother when she was living with you in 2018.
60You informed Ms Kocic that during the COVID-19 pandemic, as you were not working, you were primarily responsible for the care of your youngest daughter and the two victims. You stated that your partner’s presence in the household was sporadic, as she moved between the unit and her parents’ home in Reservoir.
61Ms Kocic administered a number of psychological tests. On the Patient Health Questionnaire-9 test, a brief tool used to assist in diagnosing depression via assessment of symptoms over the preceding two weeks, your score was indicative of moderate to severe symptoms of depression.
62On the Generalised Anxiety Disorder Assessment-7, a brief measure of symptoms of anxiety over the preceding two weeks, your test score was indicative of severe anxiety symptoms.
63On the Adverse Childhood Experiences Questionnaire, a measure to quantify instances of adverse or traumatic experiences that you experienced before the age of 18, Ms Kocic stated that your results are not clinically significant.
64Ms Kocic assessed your level of risk for future sexual offending using the Static-99 assessment tool and the Sexual Violence Risk-20 Version 2 assessment tool. On the Static-99 test, your score places you in the low-risk category relative to other male sexual offenders. On the Sexual Violence Risk assessment, you are assessed as falling at the moderate risk of future sexual reoffending, without any appropriate intervention. Overall, you are assessed as falling into the moderate-low category of sexual recidivism, meaning that you pose a risk that is lower than that of the average sexual offender.
65Based on clinical considerations, your self-report, psychometric assessment and clinical presentation, Ms Kocic is of the opinion that you suffer from an adjustment disorder with mixed anxiety and depressed mood, and by virtue of your convictions, a paedophilic disorder, non-exclusive type. She considers that your sexual offending was likely predisposed by implicit offence-supportive attitudes such as 'children are sexual objects' and 'sexual entitlement'; deviant sexual arousal; poorly controlled sexual urges; and that your offending was likely perpetuated by your perception that you would not be caught.
66Ms Kocic considers that you displayed a severe lack of introspection due to your denial, poor insight and limited self-awareness of the precipitants that led to your offending. You also have impaired perspective-taking regarding the harm your offending would have caused the victims.
67Ms Kocic states that in the aftermath of the offending, you developed an adjustment disorder with anxious and depressed mood, characterised by a lack of enthusiasm, hopelessness about the future, worthlessness, anxious distress and agitation. Ms Kocic notes that imprisonment would likely weigh more heavily on you than a person without your conditions.
Defence submissions
68Your counsel, Mr Kounnas, conceded that your moral culpability in all the circumstances is high, and that there are serious aggravating features to your offending. Regarding the objective gravity of your offending, Mr Kounnas submitted that it did not fall at the highest end of the spectrum, although your offending could not be described as anything other than very serious.
69Although it was conceded that your moral culpability is high, Mr Kounnas submitted that your mental health at the time of the offending had been significantly impacted by the COVID-19 lockdowns. Reliance was placed on the psychological report of Ms Kocic which, it was submitted, enlivened Verdins[7] principle 5.
[7]The Queen v Verdins (2007) 16 VR 269
70Mr Kounnas also relied in mitigation on the likelihood of your deportation from Australia upon your release from custody, a fact, he submitted, that weighs heavily upon you, as you have expressed a desire to help your family and your children that live here in Australia.
71Regarding your prior convictions, Mr Kounnas submitted that those matters, including the breaches of family violence intervention orders, are of a significantly different nature.
72Mr Kounnas accepted that the only sentence reasonably open is that of a significant period of imprisonment.
Prosecution submissions
73Ms Cohen, who appeared on behalf of the Director of Public Prosecutions, submitted that your offending represents 'extremely serious examples' of each of the charges. The features that mark the gravity of your offending, it was submitted, are as follows:
(i) You offended against two victims.
(ii) You were in a position of trust, power and authority in relation to both victims. Both Alison and Freda had been through foster care placements before being placed into your care. Thus, it was submitted, the breach of trust reposed in you is even more acute. Added to this, it was submitted, you were aware, at least as of March 2019, that Alison had been the victim of sexual offending by her previous foster carer.
(iii) There was a significant age difference between you and each of the victims.
(iv) Both victims were young, being under the age of 12. Your offending against Freda commenced when she was five years of age.
(v) You offended against Freda on four distinct occasions between June 2019 and October 2020.
(vi) Your offending in respect of Charges 9, 10 and 11 are course of conduct charges, meaning that your offending in respect to each of those charges occurred on at least two occasions over the offending period.
(vii) Your offending against Alison was at times facilitated by you keeping her home from school and was at times accompanied by threats that if she told anyone you would go to gaol.
(viii) You did not use a condom when sexually penetrating the victims with your penis, thus you placed them both at risk of contracting sexually transmissible diseases, and in the case of Alison, who had started menstruating, the risk of pregnancy.
(ix) Both victims were significantly impacted by your offending.
74Ms Cohen submitted that your moral culpability in respect of each of offence is high.
75Ms Cohen accepted that your criminal history is not directly relevant to your offending but pointed out that pursuant to s5AA of the Sentencing Act, the court must not have regard to your previous good character or lack of previous convictions for sexual offending. In support of this submission, Ms Cohen argued that both Alison and Freda were placed in your care by DFFH, the legal guardian of both children at the time of their placement with you. She submitted that the Department would only have considered you as suitable to provide care to the victims because of your lack of relevant prior convictions for sexual offending and your good character in that respect. That is, it was submitted, your prior good character was of assistance in having the victims placed in your care and therefore in the commission of your offending against them.
76Ms Cohen did not take issue with your counsel’s submissions concerning the application of Verdins Limb 5 and the fact that you will be serving your term of imprisonment in the expectation of being deported following your release.
Factual Dispute
77An issue arose during the plea hearing concerning the cause of Freda’s HSV-2 infection.[8] Ms Cohen submitted I should find, beyond reasonable doubt, that Freda’s HSV-2 infection was a result of your offending against her. Mr Kounnas, on the other hand, submitted that I could not, on the evidence, be satisfied beyond reasonable doubt that you caused Freda’s infection.
[8] A similar submission was not made in respect of Alison’s infection because of the possibility that she may have been infected through having been sexually abused by a previous carer.
78In written submissions dated 29 April 2025, Ms Cohen submitted that you were infected with HSV-2 since at least October 2018. The expert evidence of Dr Lobo is that HSV-2 is understood to be transmitted through direct sexual contact with an infected source. Although Dr Lobo considered that transmission via fomites is theoretically possible, this has never been conclusively established.
79Ms Cohen submitted that the prosecution is not required to prove with absolute certainty that you infected Freda, nor is it required to rebut every 'far-fetched' or unrealistic possibility consistent with an alternative form of transmission of HSV-2. Ms Cohen submitted that the evidence of Dr Lobo, combined with the jury’s findings that you sexually penetrated Freda during the period immediately prior to her diagnosis, should satisfy the court beyond reasonable doubt that you infected Freda with HSV-2. The jury, it was submitted, was satisfied beyond reasonable doubt that you sexually penetrated Freda’s vagina with your penis or mouth on six occasions between June 2019 and October 2020.
80In written submissions dated 12 May 2025, Mr Kounnas submitted that it does not follow from the jury’s verdicts and the acceptance of Freda’s evidence, that you infected Freda with HSV-2. He submitted that it was a reasonable possibility that Freda was infected innocently by transmission through fomites. While conceding that it has not been conclusively established that transmission may occur through fomites, he pointed to the evidence of Dr Lobo that it was a possibility. Mr Kounnas referred to Dr Lobo’s evidence that the herpes virus can live outside the human body for hours, and in some instances, days. He also referred to her evidence that it was possible for the virus to live in a moist environment such as on a towel and that using the same towel may pass the virus from one person to another. Similarly, Dr Lobo considered that a splash of water may possibly transmit the virus, but it would be less common than in a shared bath.
81Mr Kounnas referred to the evidence of Freda that she would have baths with Alison before going to bed[9] and Alison’s evidence that she showered with Freda.[10] Alison did not agree that she had bathed with Freda.
[9]Special Hearing Transcript, page 36.11
[10]Special Hearing Transcript, page 63.17 and 69.17-25
82Mr Kounnas submitted that because these possibilities could not be excluded, I could not find beyond reasonable doubt that you caused the infection of Freda.
83To determine this issue, I shall refer to some of the evidence of Dr Lobo given at trial. Dr Lobo is a general and forensic paediatrician who has worked, since 1999, at the Victorian Paediatric Forensic Medical Service at the Royal Children’s Hospital and at the Monash Children’s Hospital at Clayton. She has a Bachelor of Medicine and a Bachelor of Surgery from Madras University in 1979, a Diploma in Children’s Health from Madras University in 1983, a Doctorate in Medicine in paediatrics in 1987 from Madras University, is a Fellow of the Royal Australian College of Physicians since 1998, and has a Master's Degree in Forensic Medicine awarded in 2015.
84Dr Lobo stated that even with treatment, which is mainly aimed at suppressing the infection, the virus never completely disappears from a person’s body.[11] Persons infected with HSV-2 do not always show symptoms, but even when asymptomatic, infected persons may shed the virus.
[11]Transcript (“T”) 237
85Dr Lobo stated that HSV-2 is considered to be transmitted by mucus membrane to mucus membrane contact between a person who has the virus and the person who is the recipient of the contact. Practically speaking, it happens through some form of sexual contact.[12] It can be transmitted by unprotected penile/vaginal sex and unprotected penile/oral sex.[13] It may also be transmitted from an infected mother to a newborn infant at around the time of childbirth.
[12]T244
[13]T245
86Dr Lobo was asked to provide an opinion about transmission through 'fomites', that is, inanimate objects such as eating utensils, towels, surfaces, tables and other objects. Dr Lobo stated there have been studies to test how long the HSV-2 can live outside the human body because of reports by some individuals that they developed genital herpes without having sexual contact. Studies have found the virus to be a frail virus that is quite sensitive to drying and heat. It has been shown, however, to last for between four to four-and-a-half hours on plastic surfaces, four hours in warm water, and some studies have shown that in rare cases it can last for up to seven days. Studies have also shown it can last for a few hours on phallic objects and on toothbrushes. Studies, however, have not been done, for ethical reasons, to determine whether the HSV-2 can be transmitted to individuals via fomites.[14]
[14]T247
87Dr Lobo was provided with your medical records which show that you were positive for HSV-2 and other sexually transmitted diseases following testing on 23 October 2018.[15]
[15]T252
88Dr Lobo also had access to Freda’s test results following examination and testing on 27 October 2020. As stated, Freda tested positive for HSV-2. Dr Lobo stated that it is most likely that Freda suffered a primary infection and that she had acquired it from recent sexual contact.[16] Dr Lobo stated she could not rule out with absolute certainty other forms of contact as the cause of the infection.
[16]T259-260
89Under cross-examination, Dr Lobo stated it was theoretically possible that a person may shed HSV-2 onto a towel and then another person using that towel may be exposed to the virus. Dr Lobo agreed she could only put it as a theoretical possibility because it would be unethical to do such experiments on humans. She did not know whether it would be possible in the case of an infected person showering with an uninfected person, for the latter to become infected through water splashing onto her. [17] It would, however, be less likely than it would in a shared bath.
[17]T268
90The jury’s verdicts did not, either expressly or impliedly, resolve the issue I am now asked to resolve. Any factual finding I make for the purpose of sentence must be consistent with the jury’s verdicts. However, a finding on the issue I am asked to resolve, whether it be as submitted by the prosecution or as submitted by the defence, will not be inconsistent with the jury’s verdicts. The issue of transmission of HSV-2, whatever the jury’s view of it, was not necessary to establish the elements of the offences charged. The prosecution case did not rely solely on the alleged transmission of the virus in proof of your offending against Freda.
91It is also clear that in resolving the issue, I am not required to make a positive finding that you did not infect Freda with the virus. No such submission was made by Mr Kounnas.
92Having considered the evidence and the submissions of both counsel, given the theoretical possibility of transmission through fomites, in circumstances where Freda shared the same accommodation and bathroom with you and Alison, and, at least according to Freda, at times she bathed with Alison, I am not prepared to find beyond reasonable doubt that you infected Freda through sexual penetration. A theoretical possibility, in the circumstances of Freda sharing the same accommodation during the relevant period with you and Alison, who was also infected with the virus, and where the virus might survive for hours on objects, in my opinion does not equate to a fanciful, unrealistic or far-fetched possibility of innocent transmission. To be clear, however, this is not a finding that you did not infect Freda through your sexual penetration of her, you probably did, given Dr Lobo's evidence that most likely Freda suffered a primary infection and that she had acquired it from recent sexual contact. However, such a likelihood does not persuade me to the required level of beyond reasonable doubt. Accordingly, I do not find the infection of Freda with HSV-2 is a circumstance of aggravation and you do not fall to be punished for it. Of course, that is not to say that you did not expose her to the risk of infection, which you clearly did.
Sentencing considerations
93The offences of which you were found guilty are inherently serious offences. Their seriousness may be gauged by the maximum penalties that may be imposed. The maximum penalty for the offence of sexual penetration of a child under the age of 12 is 25 years’ imprisonment; the offence of sexual penetration of a child or lineal descendant also has a maximum penalty of 25 years’ imprisonment; and sexual assault of a child under 16 has a maximum penalty of 10 years’ imprisonment.
94Courts have long recognised the inherent seriousness of sexual offending against children and the harm thereby caused, particularly those in which a person with parental responsibility has offended. The cases provide the proper context and guidance in which to view your offending against the two victims.
95In Clarkson[18] the Court of Appeal stated that the absolute prohibition on sexual activity with a child is founded on a presumption of harm.
[18] Clarkson v R (2011) 32 VR 361 at [3]
96In Talbot[19] the Court stated:
'Incest is an extremely serious crime, it involves the sexual penetration of a child which is, by its very nature, an act of violence. It is so obviously contrary to every tenet of parental care for children, and every parent is taken to understand that sexual activity is absolutely prohibited'.[20]
[19] DPP v Talbot [2024] VSCA 321
[20] Ibid [51]
97In Reid,[21] Priest JA stated:
' With greater enlightenment came the realisation that incest is often a crime where the vulnerable, who are worthy of protection, are exploited by those entrusted with their care. It is now seen to be a crime which, when perpetrated by an adult parent, or step-parent or grandparent against a child, is erosive of human relations, the prominent features of which include the exploitation by the stronger will of the adult of the weaker will of the child, the physical and psychological subordination of the child to the perverted indulgences of the adult, the gross breach of trust placed in the offender by the victim and the community, and the irreparable and fundamental damage to the victim'.”[22]
[21]Reid (a pseudonym) v R [2014] VSCA 143
[22]Ibid at [83]
98The sexual penetration offences are Category 1 offences, and each carry a standard sentence of 10 years’ imprisonment, and the offence of sexual assault of a child under 16 has a standard sentence of four years’ imprisonment. The standard sentence is the sentence for an offence that taking into account only the objective factors affecting the relative seriousness of the offence is in the middle of the range of seriousness.
99In my opinion the offences you committed against your daughter and stepdaughter are objectively very serious. They show at times pre-mediation, such as when you caused Alison to stay at home from school or when you took her out in your car, or when you called Freda into the loungeroom. The victims were young and particularly vulnerable children, having been placed in your care. They were entitled to expect that they would be safe and protected by you. Freda was of a particularly tender age and Alison not much older. Their impact statements speak eloquently of the harm you caused each of them. There was a significant power imbalance between you by virtue of your position as parent of both children and the considerable age difference. They were placed in your care by DFFH because their mother was not able to care for them. In the case of Alison, she had been removed from foster care and placed with you because she was sexually abused in that earlier placement. You were aware of that sexual abuse perpetrated on her in that placement. This is apparent from your record of interview and adds to the seriousness of your conduct.[23]
[23] See recorded interview, 8 March 2021 at Q47 and 129.
100You were also in a position of trusto care for the two victims and to ensure that they were safe. You violated that trust in the most base manner, preying on the two victims when you were alone together and warning Alison not to tell anyone as that might result in you going to gaol and the family turning against her.[24]
[24] See VARE 1 March 2021 Q 41.
101Your level of moral culpability is, in my opinion, high. Nothing said at the plea hearing has persuaded me that it is anything less than that. I do not accept that the COVID pandemic had any impact on your mental state or any bearing on the question of your moral culpability. Such a submission is unsupported by any evidence.
102Your offending is aggravated by reason of the fact that you did not use a condom during penile-vaginal penetration and penile-oral penetration. You had previously been diagnosed as suffering from sexually transmitted diseases, including HSV-2. I reject your assertions that you were not aware of any such diagnoses. You exposed each child to the risk of contracting a sexually transmitted disease, and Alison to the risk of pregnancy. You acted in complete disregard of those risks.
103Your offending against Freda occurred over some 16 months and against Alison over some 24 months. Even after Freda was removed from your care, following the discovery of HSV-2, this did not stop you. You took Alison out in your car and committed the offences the subject of Charges 12 and 13. You had more than ample opportunity to consider the wrongfulness of your conduct, the risk of transmitting sexual diseases to the victims, the risk of impregnating Alison, and the harm that you were causing these young children.
104Your offending did not involve additional acts of violence over that inherently involved in sexual penetration and sexual assault, nor is it said that you provided incentives to the two victims in order that they engage in such conduct. However, as to your counsel’s submission that there were no threats or incentives to ensure the children’s silence, as earlier stated, you did tell Alison that if she told anyone you would go to gaol and that no-one in the family would like her. Furthermore, you at times contrived to have Alison stay at home rather than go to school so that you could indulge your abhorrent sexual urges.
105Charges 9, 10 and 11 are course of conduct charges. Clause 4A of Schedule 1 to the Criminal Procedure Act defines a 'course of conduct' charge as 'a charge for a relevant offence that involves more than one incident of the offence'. Pursuant to s5(2F) of the Sentencing Act, in sentencing you for a course of conduct charge, a court:
(a) must impose a sentence that reflects the totality of the offending that constitutes the course of conduct; and
(b) must not impose a sentence that exceeds the maximum penalty prescribed for the offence if charged as a single offence.
106In Crawford[25] the Court stated that course of conduct charges are 'particularly appropriate where the offending is so frequent that it is difficult for the complainant to give precise particulars of the number of incidents of the offence or the dates, times, places, circumstances or occasions of the incidents.' [26]
[25] Crawford (a pseudonym) v The Queen [2018] VSCA 113
[26] Ibid [64]
107In determining the appropriate penalty in respect to each of those charges, counsel both agree that in respect of Charge 9, the conduct of which Alison complained, happened two or three times per week over the offending period, and in respect of Charges 10 and 11, it happened on 'multiple occasions', in the garage and in the bedroom over the offending period. The evidence does not reveal on how many occasions such offending occurred other than it was on 'multiple occasions.' I find that your offending occurred on at least two occasions over the offending period.
108You elected to contest Freda’s and Alison’s allegations at trial. They were both required to give evidence at a special hearing. It was your right to contest the charges, and you are not to be punished for exercising that right. However, you are not entitled to the usual, often significant, sentence reductions on account of the utilitarian benefits that attach to pleas of guilty. I may also have regard to your pleas of not guilty in my assessment of your prospects for rehabilitation, the need to deter you from further offending and the need to protect the community from you.
109Regarding your prospects, I have regard to the fact that you have not previously been convicted of any sexual offences, your work history, and that you have no major psychiatric or psychological issues. However, weighing against your prospects is that you have demonstrated no remorse for your conduct, you lack insight into the wrongfulness of your offending and its impact upon the victims of your offending, and the moderate to low risk of you sexually reoffending in the future without appropriate treatment. In my opinion, at this time, your prospects are not to be viewed as anything other than 'guarded.'
110As I intend to sentence you to a term of imprisonment on Charges 1 and 2, pursuant to s6B of the Sentencing Act 1991 (the Act) you will become a serious sexual offender. Accordingly, when sentencing you on Charges 3 to 13, each of which are relevant offences pursuant to Clause 1, Schedule 1 of the Act, I am required to sentence you on each of those offences as a 'serious offender.' I must therefore regard the protection of the community from you as the principal purpose for which sentence is imposed, and may, in order to achieve that purpose, impose a sentence longer than that which is proportionate to the gravity of the offence being considered.[27] It was not submitted by the learned prosecutor that I impose a disproportionate sentence, nor do I consider it necessary to do so to protect the community from you.
[27] Section 6D Sentencing Act 1991 (Vic)
111However, in my opinion, nothing short of a significant term of imprisonment would satisfy sentencing considerations of protection of the community, general deterrence, specific deterrence and the denunciation of your abhorrent conduct. General deterrence is also a significant sentencing consideration. The sentence to be imposed must seek to deter others from committing similar offences against children.
112Section 6E of the Act also requires that the sentences imposed on Charges 3 to 13 be served cumulatively upon each other unless I otherwise direct. Section 6E does not, however, preclude the operation of the totality principle. That is, it does not preclude a review of the total effective sentence to see whether it is just and appropriate. In the circumstances of your case, particularly given the number of offences you committed and their seriousness, I consider that if I was to accumulate fully the sentences on each of Charges 3 to 13, it would result in a crushing and disproportionate sentence. I do not propose to do so.
113Some weight will be given to your diagnosis of an adjustment disorder and its impact on how you will serve your term of imprisonment. Furthermore, I accept your counsel’s submission that your likely deportation from Australia upon your release will weigh heavily upon you during the course of your sentence. In Guden,[28] the Court considered that 'the fact that an offender will serve his or her term of imprisonment in expectation of being deported following release may well mean that the burden of imprisonment will be greater for that person than for someone who faces no such risk.'[29] I will also have regard to the fact that the sentence I must impose will also mean a loss to you of the opportunity of you settling permanently in Australia.
[28]Guden v R (2010) 28 VR 288
[29] Ibid [27]
114I am also required to have regard to current sentencing practice. I am only permitted to have regard to those sentencing cases to which the standard sentence regime applies. Sentences passed in other cases may provide some assistance in forming the instinctive synthesis, but they are not precedents that must be followed, each case must ultimately be decided by reference to the circumstances personal to the offender, the circumstances of the offending and the aggravating and mitigating features present in the case. I was referred to a number of comparative cases by the learned prosecutor. I have had regard to each of those cases as well as other sentencing decisions of both the Court of Appeal and of this Court.
115Similarly, I am required to have regard to the standard sentences that attach to each of the offences you committed. I am mindful, however, of what was said by the Court in McPherson that the standard sentence, particularly for offences of the kind you committed, is an 'intangible concept, and judges ought to be wary of affording it too much weight in the sentencing exercise.'[30] The standard sentence scheme also dictates that I should fix a non-parole period of at least 60 per cent unless it is in the interests of justice not to do so. I intend to impose sentences on some of the charges that are below the standard sentence applicable. I do so having regard to all the relevant sentencing considerations that inform the instinctive synthesis approach to sentencing, including the fact that you do not have prior convictions for sexual offending, the fact that this is your first time in custody and the conditions under which you are serving your time in custody.
[30] McPherson v The Queen [2021] VSCA 53 at [31]
Sentence
116HIS HONOUR: Having regard to all relevant sentencing considerations, you are sentenced as follows:
Charge 1, sexual penetration of a child under 12 years of age, you are convicted and sentenced to eight years and six months’ imprisonment.
Charge 2, sexual penetration of a child under 12 years of age, you are convicted and sentenced to eight months’ imprisonment.
Charge 3, sexual penetration of a child under 12 years of age, you are convicted and sentenced to seven years and six months’ imprisonment.
Charge 4, sexual penetration of a child under 12 years of age, you are convicted and sentenced to eight years and six months’ imprisonment.
Charge 5, sexual penetration of a child under 12 years of age, you are convicted and sentenced to eight years and six months’ imprisonment.
Charge 6, sexual penetration of a child under 12 years of age, you are convicted and sentenced to eight years and six months’ imprisonment.
Charge 7, sexual penetration of a child under 12 years of age, you are convicted and sentenced to eight years and six months’ imprisonment.
Charge 8, sexual penetration of a child or lineal descendant, you are convicted and sentenced to seven years and six months’ imprisonment.
Charge 9, sexual assault of a child under 16 years of age, a course of conduct charge, you are convicted and sentenced to four years’ imprisonment.
Charge 10, sexual penetration of a child or lineal descendant, a course of conduct charge, you are convicted and sentenced to 10 years and six months’ imprisonment.
Charge 11, sexual penetration of a child or lineal descendant, a course of conduct charge, you are convicted and sentenced to 10 years and six months’ imprisonment.
Charge 12, sexual penetration of a child or lineal descendant, you are convicted and sentenced to nine years’ imprisonment.
Charge 13, sexual penetration of a child or lineal descendant, you are convicted and sentenced to nine years’ imprisonment.
117The sentence imposed on Charge 10 is the base sentence. I direct that 12 months of the sentence imposed on Charge 1, six months of the sentence imposed on Charge 2, three months of the sentence imposed on Charge 3, 12 months of the sentence imposed on Charge 4, three months of the sentence imposed on Charge 5, 12 months of the sentence imposed on Charge 6, three months of the sentence imposed on Charge 7, six months of the sentence imposed on Charge 8, six months of the sentence imposed on Charge 9, 12 months of the sentence imposed on Charge 11, six months of the sentence imposed on Charge 12, and six months of the sentence imposed on Charge 13, be served cumulatively upon each other and upon the base sentence.
118This makes a total effective sentence of 17 years and nine months’ imprisonment. I fix a non-parole period of 12 years and six months.
119Pursuant to s18 of the Sentencing Act, I declare that the period of 235 days, not including today, has been served by way of pre-sentence detention and I will cause that declaration to be noted in the records of the court.
120Pursuant to s6F of the Act, I direct that there be entered into the records of the court that you are sentenced as a serious sexual offender on each of Charges 3 to 13.
121You have been convicted of more than two Class 1 offences under the Sex Offenders Registration Act 2004. Accordingly, you will be required to comply with the obligations imposed under the Act for the rest of your life.
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