Director of Public Prosecutions v Henderson (a pseudonym)
[2021] VCC 17
•19 January 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| THOMAS HENDERSON (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE LACAVA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 5 August 2020 |
DATE OF SENTENCE: | 19 January 2021 |
CASE MAY BE CITED AS: | DPP v Henderson (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2021] VCC 17 |
REASONS FOR SENTENCE
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Subject: persistent sexual abuse x 2, incest, sexual assault of a child under 16,sexual penetration of a child under 16
Catchwords: Serious sexual offender
Sentence: 28 years imprisonment with a non parole period of 21 years
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms E. James | |
For the Accused | Ms A. Haban-Beer |
HIS HONOUR:
1You have pleaded guilty to seven charges involving sexual offences committed against children. It is repeated high level sexual offending against children. There are four victims of your offending. The offending spans a period between January 2014 and July 2019. The victims included two of your own children, and two children who were friends of your daughters. The offending occurred when you were a parent in a position of trust. It also occurred when you were acting in a position of care and responsibility of a child who was a friend of your daughter. And it occurred when you were invited into the home of another family friend as a trusted guest. It was conceded on the plea that your offending requires a lengthy total effective sentence and the fixing of a non-parole period.
2Because of the number of complainants, and the high level of your offending and the various sentencing provisions contained in the Sentencing Act 1991 ('the Act') perhaps the most difficult sentencing principle to have to apply in the sentencing of you is that of totality in sentencing. Your counsel properly addressed her submissions on your behalf to that principle. She asked that I not impose a crushing sentence.
3In passing sentence upon you for these crimes I have endeavoured to keep that sentencing principle firmly in mind, as well as the other sentencing principles and the various provisions of the Act that are each respectively enlivened by your crimes.
4The indictable crimes that you have pleaded guilty to are charged in three separate indictments that were filed with the court in the order of charging. However, your offending occurred in a different chronological sequence. It is agreed between the prosecution and the defence that I should sentence you in on the basis of the chronological sequence of your offending, and not in the order in which the three indictments were filed. I will sentence you for a number of these crimes as a serious sexual offender, a matter about which I will have more to say a little later.
5In order to protect the identity of the victims of your crimes you are identified in these sentencing remarks by the pseudonym, 'Thomas Henderson'. Your daughters who were the victims of your offending in the charges contained in indictment L10067143 ('the Henderson Indictment') are identified respectively by the pseudonyms Ivy Henderson and Abby Henderson.
6A friend of your youngest daughter was the victim in the charges in indictment J12145960.1 ('the Matthews Indictment'). She is identified in these sentencing remarks by the pseudonym Zoe Matthews. Another of your daughters who is relevant on the facts in the Matthews indictment, but who is not a victim, is referred to in these sentencing remarks by the pseudonym Donna Henderson.
7Another friend of your daughter, Abby, was the victim in the charges in indictment K11828711.2 ('the Wilson Indictment'). She is identified in these sentencing remarks by the pseudonym Catrina Wilson.
8In the Henderson Indictment you have pleaded guilty to two charges of persistent sexual abuse. Charge 1 is a charge of persistent sexual abuse of your daughter Ivy Henderson, a child under the age of 16 between 17 January 2014 and 13 June 2017, a period of roughly three and a half years. Ivy was aged between 10 and 13 years old during the period of offending.
9Charge 2 is a charge of persistent sexual abuse of your daughter Abby Henderson, a child under the age of 16 between 31May 2016 and 30 June 2017, a period of thirteen months. This offending in part straddled the offending in Charge 1 so that there was a period where you were persistently sexually abusing your daughters Ivy and Abby at the same period of time. Abby was aged between nine and 10 years old during this period of offending.
10The maximum penalty for the offence of persistent sexual abuse of a child under the age of 16, charged in Charges 1 and 2, is imprisonment for 25 years.
11Charge 3 is a charge of incest involving the sexual penetration of your daughter Abby Henderson between 2 March 2019 and 10March 2019. At this time Abby was 11 years and 10 months old. The maximum penalty for the offence of incest is also imprisonment for twenty-five years. Because of the time that this offence occurred it is a standard sentencing offence for the purposes of s.5A of the Act. The standard sentence for the offence of incest is a term of imprisonment of 10 years. As I will soon explain, this offence against your daughter Abby occurred whilst you were on bail for the offending against Zoe Matthews. That is another aggravating factor. Section 16(3C) of the Act is also enlivened.
12The Matthews Indictment contains one charge of committing an indecent act with Zoe Matthews, a child under 16, between 2 March 2017 and 30 June 2017. The maximum penalty for this offence is imprisonment for 10 years. At the time of this offence the victim was aged four to five years old.
13The Wilson Indictment contains three charges. Charge 1 is a charge of attempted sexual assault of Catrina Wilson, a child under the age of 16, between 8 March 2019 and 30 June 2019. The maximum penalty for this offence is imprisonment for five years. At the time of these offences the victim was 12 years of age.
14Charge 2 is a charge of sexual assault of Catrina Wilson, a child under the age of 16, between 1 May 2019 and 14 July 2019. The maximum penalty for this offence is imprisonment for 10 years. Because of the time that this offence occurred it is a standard sentencing offence for the purposes of s.5A of the Act. The standard sentence for the offence of sexual assault is a term of imprisonment of four years.
15Charge 3 in the Wilson Indictment is a charge of sexual penetration of Catrina Wilson, a child under the age of 16 years. The maximum penalty for this offence is imprisonment for 15 years. Because of the time that this offence occurred it is also a standard sentencing offence for the purposes of s.5A of the Act. The standard sentence for the offence of sexual penetration of a child under the age of 16 years is a term of imprisonment of 6 years.
16In addition, the offending against Catrina Wilson occurred whilst you were on bail, you having been charged with the offending against Zoe Matthews, committed for trial and released on bail. You pleaded guilty to one summary charge of committing an indictable offence whilst on bail, a summary offence for which the maximum penalty is imprisonment for three months, and you agreed to having that summary charge dealt with by me in this court. Again, s.16(3C) of the Act is enlivened.
17As you can see from the maximum penalties fixed by the parliament your offending in the crimes that you have pleaded guilty to is clearly very serious. It was conceded by your counsel on the plea that you face a lengthy term of imprisonment and it has appropriately not been suggested otherwise.
18All of your offending was against young children. In such circumstances appellate courts in every jurisdiction of this country have long stressed the need for sentencing in such circumstances to appropriately reflect proper application of the sentencing principles of deterrence (both general and specific), denunciation and protection of children. The sentence must also reflect just punishment and have regard to your prospects for rehabilitation. As I have already said, the sentence must also have regard to totality and the overall sentence imposed must reflect just punishment.
19The circumstances of your offending are set out in a Summary of Prosecution Opening dated 20July 2020, Exhibit A. That document was read in open court by the prosecutor, Ms James. Your counsel, Ms Haben-Beer, accepted that the prosecution summary was accurate, and forms a proper factual basis upon which I can proceed to pass sentence upon you. In those circumstances it is not necessary that I here repeat in detail that which is set out in the prosecution opening, and I do so only in an abbreviated way. These sentencing remarks should however be read in conjunction with what is set out in more detail in the prosecution opening.
20The offending encapsulated by the three indictments, and the summary charge, is best explained for the purposes of these sentencing remarks by commencing with a description of the offending in the Matthews Indictment. That offending was the subject of first complaint about you to the police. You were interviewed and charged and bailed in relation to that offending on 9 August 2018 and there was a filing hearing for the Matthews charges on 7 February 2019.
21I will then proceed to explain the offending involved in the offending encapsulated by the Wilson Indictment. The offending involved in the charges on the Wilson indictment occurred between 8 March 2019 and 14 July 2019. It occurred whilst you were on bail for the charges in the Matthews Indictment which had been before the Magistrates' Court in February 2019.
22You were charged and remanded in custody in relation to the Wilson charges on 14 July 2019, and you have remained on remand since that date. You have served a total of 553 days on remand and this will be declared as pre-sentence detention.
23The fact the offending in the Wilson Indictment occurred whilst you were on bail for the Matthews offending, is an aggravating factor in the sentencing of you in relation to the charges in the Wilson Indictment.
24Further, when sentencing you in relation to each of the charges contained in the Wilson Indictment, I must comply with s.16 (3C) of the Act. Relevantly, that section provides that every term of imprisonment imposed for an offence committed by an offender whilst released on bail for any other offence, must be served cumulatively unless the sentencing court otherwise orders.
25Finally, I will go on to explain your offending encapsulated by the Henderson Indictment. The offending against your own daughters occurred first in time of all this offending against children, but it was not the subject of complaint, and thus was not investigated until after the Matthews and Wilson offending was known. You were thus not interviewed or charged in relation to the offending encapsulated in the Henderson Indictment until 3 January 2020. At that time you were in custody on remand for the Matthews and Wilson charges.
26I turn to deal with your offending the subject of the charges in the Matthews Indictment.
27This offending occurred between March and June 2017 when you were aged between 37 and 38 years. The complainant, Zoe Matthews was only four to five years of age at the time. She is now eight years of age. She and your daughter, Donna, attended the same pre-school and became close friends. Through that friendship you became friends with the complainant's mother. You took it in turns to have the children over for play dates. On occasions you collected both your daughter and the complainant from school. On one such occasion covered by the charge, you took the complainant along with your daughter Donna, to your home for a play date.
28Whilst in your care and under your supervision you took your daughter and Zoe Matthews the complainant into your bedroom. You told the complainant to touch your naked penis which she did at your instruction. You then licked the complainant's hand and arm and you then pulled down the complainant's pants and licked her vagina. This constitutes the offence of an indecent act with a child under the age of 16 years. The complainant then witnessed you do the same thing to your daughter Donna. This is an uncharged act referred to in order to give context and setting to the offending in the charged act. Similarly, you took the complainant to your bedroom with your daughter present on a second occasion. This time the complainant said, 'No', to your request that you lick her vagina. This evidence is also led as context.
29Your offending was revealed soon after when the complainant disclosed to her mother what you had done. She was soon after taken to the family doctor and thence to the police. She did not make a recorded statement until 1 August 2018.
30You were interviewed and charged on 9 August 2018. You initially denied any offending, saying it was impossible, and that the complainant's allegations were lies. When asked, your daughter Donna made no disclosures. You were arraigned and entered a plea of guilty to the charge on 5September 2019. Before that occurred, the Wilson matters intervened.
31I received into evidence victim impact statements from the mother and maternal grandmother of the complainant/victim, Zoe Matthews. They are compelling documents which each speak of the severe impact your offending had on the lives of the complainant and her family.
32The complainant's mother was pregnant at the time of this offence and it caused her a great deal of worry and psychological harm. The victim had to change schools thus losing many friends. Her mother worries that she let her daughter down and placed her in danger because she entrusted her into your care. Understandably, she blames herself for not protecting her daughter from you. That is a natural reaction of any parent. Unfortunately, even the best mothers cannot protect their children against a sexual predator such as yourself. That is why the law must do the best it can in sentencing, to reinforce the high need to protect children. The complainant was only four or five years old at the time of the offence and whilst there is no evidence before the court of she having suffered long term psychological harm, it is sadly the experience of the courts that young children subjected to such sexual abuse may have suffered psychological harm that may not in fact become apparent until later in the child's life.
33The offending in the charge in the Matthews Indictment is clearly a very serious example of what is a very serious offence. You licked the vagina of a four to five-year-old child in what must have been a bewildering experience for the child. In my judgement, your offending in committing this charge falls at about mid-range for this kind of offending. You had the complainant touch your penis and you licked her vagina. The complainant was very young, and she was placed in your care by her mother who clearly trusted you. You committed the offence in the presence of your own very young daughter. Your offending in the Matthews Indictment clearly involved a gross breach of trust placed in you by the victim's mother. You will be sentenced on this charge as a serious sexual offender.
34Your counsel appropriately conceded that an aggravating feature of this offence is the tender age of the victim. This charge was the subject of a submissions only committal. I will sentence you on this charge on the basis that you pleaded guilty at the earliest opportunity.
35I turn to deal with your offending the subject of the charges in the Wilson Indictment. This offending occurred between March and July of 2019 whilst you were on bail for the offending in the Matthews Indictment.
36At the time of this offending you were aged 39. You lived at a unit in Frankston. You were unemployed.
37The complainant, then aged 12, lived with her parents and siblings. Your daughter Abby became friends with the complainant and through that friendship you became friends with the parents of the complainant. You regularly visited their home. The offending occurred on two occasions when the parents of the complainant allowed you to sleep in their spare bedroom. You were a trusted guest in their home.
38The offending in Charge 1 occurred in circumstances where you told the complainant to go to the spare room and lie on the bed, which she did. You then laid next to her and touched her breasts over her clothing. You then pulled her hand and tried to have her touch your penis. You told the complainant that you would not let her see her best friend, your daughter, if she did not go with you to the spare room. You also told her to keep secret what had occurred. Charge 1 attempted sexual assault of a child under 16 years. This is a
rolled-up charge embracing each of your vile acts.39On 13 July 2019 you again visited the Wilson home. On this occasion you were accompanied by your then partner. There were a number of other adults and children at the gathering. There was some dining and drinking and during the course of the evening a number of guests and children left. Your partner was driven home but you remained.
40You were drinking with the complainant's parents. During discussions you asked whether the complainant's mother would provide you with a character reference to be produced at court for the pending Matthews charge. Around 1.30 am the complainant's mother went to bed. You continued drinking with her father until around 3.00 am, it having been previously agreed that you would sleep in the spare room.
41Whilst this was happening the complainant was playing a computer game in her bedroom. Sometime after midnight you entered her bedroom and told her to go to the spare room. You then left. The complainant did not go to the spare room but you soon after came back. You said to her, 'Catrina, why aren't you in my bed yet? I asked you to go in about 10 minutes ago'. The complainant did not go to the spare room but you soon after returned to her bedroom. You tried to pull her out of the bed and take her computer from her. You then touched the complainant's breast over her clothing. Charge 2, Sexual assault of a child under 16 years of age. As in Charge 1, this is an agreed rolled-up charge embracing each of your vile acts.
42You then put your hand inside the complainant's track pants. You rubbed and digitally penetrated the complainant's vagina. Charge 3, Sexual penetration of a child under 16.
43After several minutes you left to have a cigarette after briefly speaking with the complainant's sister who was also present in the complainant's bedroom. Soon after you returned and got into the complainant's bed under the blanket and tried to force her legs apart. The complainant told you to stop and go away but you persisted. That was your mistake. The complainant escaped and ran to her parents' bedroom. This evidence is all led as context.
44The complainant made an immediate complaint to her mother. Soon after you were asked to leave the house and the matter was immediately reported to the police who attended about 4.00 am in the morning.
45Later that morning you were arrested and interviewed by police. You denied the offending. A DNA sample taken from the crotch area of the complainant's jeans linked you to the offending.
46This offending by you in Charges 2 and 3 was both persistent and brazen. You insisted on having your way sexually with the complainant, a young child aged 12, who was in her own bed, in her own home where you had been admitted as a trusted family friend. The complainant was entitled to feel safe in her own home with her parents and sister present. You ignored all of that and no doubt in an intoxicated state, you sexually assaulted her and sexually penetrated her. You seemed to have been hell bent on satisfying your own sexual desires with a young girl who was a child and close friend of your own young daughter.
47This is again very serious offending, committed after you had been committed and released on bail for the offending in the Matthews Indictment. As I said earlier, this is an aggravating feature of the Wilson Indictment offences. A short time before the offending you had the audacity to ask for a character reference. Your offending occurred whilst you were a trusted guest of the family. You breached that trust and sexually assaulted a young girl in her own bed. These are some of the objective features of your offending that I have taken into account in arriving at the sentence I will impose on Charges 2 and 3 on the Wilson Indictment. Your offending in Charge 2, in my judgment, is below mid-range for this kind of offence. Your offending in Charge 3 in my judgment is at about mid-range for this offence. You were determined to sexually penetrate Catrina Wilson, a young girl, in what must have been a frightening experience for her.
48I admitted into evidence victim impact statements from the parents of Catrina Wilson. They are also compelling documents. What comes through is the hurt they have suffered at your hands because of your breach of trust. The complainant's mother especially suffered from depression and high blood pressure and a brain haemorrhage. What you did touched upon almost every aspect of their lives, physically and emotionally.
49I also received a victim impact statement from Catrina Wilson herself. She feels sad and confused in many ways. She lost her best friend and she worries what will happen to your family and whether her complaint may impact that family. She has been affected emotionally and has had counselling. The complainant's sister also filed a victim impact statement as your crime has also affected her life. In passing sentence, I have taken these victim impact statements into account, as I must.
50Your counsel conceded the Wilson offending to be serious. She acknowledged it was done in a setting of heavy drinking. She has submitted it appeared to have been reckless offending with no regard to the consequences. I accept that submission. I accept that the charges in the Wilson Indictment resolved at committal. I treat you as having agreed to plead guilty to these charges at an early stage.
51I turn to deal with your offending the subject of the charges in the Henderson Indictment. There is some background relevant to the circumstances in which this offending occurred.
52You were born on 30 September 1979. You are now 41 years of age. You have five children with a former partner. Those children included Ivey who was born on 17 January 2004, and Abby who was born on 31 May 2007.
53At some point you moved from New South Wales to Frankston where you met another woman with whom you formed a relationship which resulted in the birth of your daughter to whom I have attributed the pseudonym Donna who was born on 25 February 2012.
54In January 2018 the five children of your earlier relationship came from New South Wales to reside with you and your new partner in Frankston. Thereafter you resided with your new partner and six children in Frankston.
55The offending against Ivy in Charge 1 on the Henderson Indictment occurred when Ivy was aged between 10 and 13 years of age. The offending spanned the period between 17 January 2014 and 30 June 2017 a period of nearly three and a half years. At that time Ivy was aged between about 10 and 13 years. She is now 17 years of age.
56Until December 2017 when the children came to live with you in Frankston, both Ivy and Abby, and your other children came to stay with you and your new partner in Frankston on most school holidays. You assumed full-time care of them in early 2018.
57Charge 1 relates to multiple sexual offences committed by you against Ivy over the period set out in the charge, a period of three and a half years. For the purposes of the plea it was agreed that Charge 1 comprises multiple occasions where you introduced your penis into the vagina of Ivy at addresses occupied by you at Frankston North and Carrum Downs. The charge is put on the plea conducted on the agreed basis that there was a, 'Normal routine' of penis/vagina penetration.
58Your daughter Ivy participated in a recorded interview after the offending in the other two indictments was charged. During her interview conducted on 2 October of 2019, she told the police in a very matter-of-fact way what you had done to her. This is summarised in paragraph 10 of the prosecution summary. Ivy told police you would ejaculate wearing a condom. You told her not to tell anyone, and that what you were doing with her was normal. I will not repeat here all that is set out in paragraph 10 of the prosecution summary. It is frankly abhorrent conduct by you towards your own daughter over a long period of time. You seem to have relentlessly pursued your daughter Ivy to satisfy your own depraved sexual appetite.
59Your daughter trusted you and that is why the offending persisted for so long. It only ceased at her insistence.
60The offending in Charge 2 relates to your other daughter Abby Henderson, who was born on 31 May 2007. This charge relates to various sexual acts committed by you against Abby between 31 May 2016 and 30 June 2017. It can be seen that your offending in relation to Abby overlapped with your offending against your other daughter Ivy embraced by Charge 1.
61In Charge 2 it is agreed for the purposes of the plea that your offending against Abby involved penetration of her vagina with your finger, and penis on multiple occasions, and introducing your penis into her mouth on multiple occasions, and rubbing your penis against her anus on five occasions. At the time that this offending occurred Abby was aged between nine and 10 years.
62Again, it is agreed that this charge is put on the basis that there was a normal routine of penis/vagina penetration, digital penetration, touching of your genitals and oral sex. Your crimes against your daughter Abby occurred behind a locked bedroom door. With Abby you did not wear a condom.
63Your daughter Abby was recorded at interview with police on 16 August 2019. What she told them of the sexual acts you engaged in with her, and the regularity with which those acts occurred, and where they occurred, is in part summarised in paragraph 13 of the prosecution opening. It is not necessary that I here repeat in graphic detail what is there set out.
64Charge 3 is the charge of incest with Abby over a specific period of one week in March 2019. By this time Abby was aged 11 years and 10 months. This offending occurred at the home of Catrina Wilson. It occurred at around the same time as the offending in Charge 1 on the Wilson Indictment. By this time you had left the family home in Frankston but often visited the Wilson home. Your daughter Abby was camping with her friend Catrina Wilson and other friends in the back yard of the house. She felt sick and went inside the house to the spare room. You came into the room where you had penile/vaginal intercourse with your daughter. This seems to have been an opportunistic offence committed by you against Abby outside the time frame covered by Charge 2. It is an aggravating feature of this offence that it also occurred whilst you were on bail for the Matthews charge.
65You declined to be interviewed by police in relation to your offending against Ivy and Abby. Later, on 20 August 2019, before you were formally charged with any of the offending in the Henderson indictment, you were covertly recorded in a conversation with your mother on an Arunta phone call in which you made statements which are admissions of your offending against your own daughters. You were charged with the offending in the Henderson Indictment on 3 January 2020. Your counsel set out in her written outline part of what you said to your mother in the intercepted conversation with her. She submits that what you said is evidence of your genuine remorse. I accept that you expressed some remorse to your mother in that phone call before you were charged with the offending against both of your daughters.
66I have described your offending against your own daughters Ivy and Abby as abhorrent. You offended against Ivy over a period of three and a half years. It was prolonged, persistent and regular. It involved many sexual acts of penetration of a young girl whilst in your care as a parent and when you were in a position of trust. The same might be said of your offending in Charge 2 against your daughter Abby, although it involved the same level of sexual acts of penetration against a young girl, it was for a shorter period. The entire period that you offended against Abby included offending against Ivy. Your offending in Charges 1 and 2 is clearly high-level offending of this kind. In my judgement it is towards the upper level for this kind of offending. The maximum penalty for each of the offences charged in Charges 1 and 2 on the Henderson Indictment reflects just how seriously the Parliament of this State regards this kind of offending.
67The offence in Charge 3 is a standard sentencing offence and the sentence must be arrived at having regard to the objective factors affecting the relative seriousness of the offence. The standard sentence is but a guidepost to the sentence having regard to the objective factors involved in the commission of the offence. When you committed this offence you were in a trusted position as a guest in the home of the Wilsons, because their daughter was best friends with Abby. This offence against Abby occurred around the time of the first offence against Catrina Wilson and whilst you were on bail and had a short time previously been before the Magistrates' Court for a filing hearing in relation to the Matthews offence. You had no regard to anyone but yourself. You engaged in a disgraceful sexual act with your own daughter at a time when you would have expected her to be enjoying herself with her friends. Instead, you took advantage of the fact that she felt ill and left her friends outside. Rather than caring for her, you took advantage of the situation and the opportunity to have sexual intercourse with her. I regard your conduct in committing this crime as being repugnant and abhorrent. Again, the maximum penalty for the offence of incest reflects how seriously the Parliament regards such offending. Unlike Charges 1 and 2 it is charged as a one-off act that occurred in circumstances where in my judgment, it falls at about mid-range for the offence. In passing sentence for the offending in Charge 3, I have had regard to the standard sentence prescribed for this offence.
68I received in evidence a victim impact statement from your daughter whom I have named by the pseudonym Ivy. What she has said in that statement typifies what many victims of such crimes have said to the courts over a number of years. It also reflects, I think, the psychological harm that incestuous offending of this kind can impart to the victims. This is in part what she said:
'When I think of what happened I feel hurt, it affects my sleep as I have nightmares. When it comes to my general well being I am happy until I think of it. It affects any relationship with males as I now have a fear of men who are older or bigger than me. When a male, even a good friend, moves their arm towards me I always flinch, even though the motion is harmless. I have PTSD from the incident and suffer from anxiety. I do not take medication for it. I don't feel safe, I am paranoid ever since, I have lost friends because of this and I don't even feel safe around my own male family members'.
69Your counsel properly conceded that what was said by your daughter in this victim impact statement is powerful. She said that the damaging effect of your conduct on your daughters must carry significant weight in the sentencing of you.
70As with other victim impact statements that I have referred to, in passing sentence I have taken this victim impact statement into account, as I must.
71In her written outline your counsel described your offending against your daughters as being, 'Grave criminality', involving as it did a gross breach of parental duty and trust. She referred to your remorse and you have apparently instructed that this kind of conduct could never happen again and that you, 'Hate yourself'. Your counsel properly conceded however that the psychiatric evidence shows you have limited insight into the real nature of your offending and that when asked, you have tended to minimise or rationalised the offending. You are yet to develop a proper insight into what you have done. Because of this I cannot find that you are genuinely remorseful for what you have done. I think you hate yourself because of the consequences that have resulted from you having been charged and convicted.
72I turn to deal with matters related to your background circumstances. Your counsel filed with the court a lengthy and helpful outline of her plea submissions made on your behalf which I marked as Exhibit 1 on the plea.
73At the outset it was conceded that your offending is grave, involving as it did persistent sexual offending against two of your daughters, and offending against friends of your children. Your counsel agreed that a significant sentence of imprisonment is the only sentencing option available to the court in all of the circumstances. In mitigation your counsel relied upon your early pleas of guilty, your remorse and what she termed your, 'Evolving capacity for rehabilitation'.
74Your counsel relied upon your pleas of guilty and the fact that you indicated that you would plead guilty to the charges in each of the indictments at the earliest possible opportunity. By pleading guilty to the charges, you have accepted responsibility for your offending, and you have facilitated and enhanced the administration of justice. Because you have pleaded guilty you have saved the time and cost of possibly three contested committal proceedings and three trials. Importantly, you have saved the victims (two of whom are your own daughters) from having to give evidence against you and be cross-examined by your counsel. On each of these charges your pleas of guilty to the offences are of significant value. Because you have pleaded guilty you are entitled to receive, and will receive, a reduction in sentence and this will be reflected in the sentence that I will shortly pass.
75I was told and accept that prior to the service of the brief of evidence in the Henderson charges you had indicated an intention to resolve all charges. I treat you as having indicated that you would plead guilty at an early time.
76You are aged 41 and you are the youngest of three children in a family that grew up in country New South Wales. You are the father of six children ranging in age from 19 to eight years, Donna being the youngest. You have no relevant prior convictions.
77Your father deceased about five years ago. He was an alcoholic. Your mother is still alive and remains supportive of you. I was told and accept that she is now the carer of four of your children who now live in country Victoria. This was arranged at the request of DHHS. I received into evidence a letter from your mother. She says you are a caring and supportive person and she would never have thought you to be capable of such acts. Your older sister remains supportive and in contact with you. I also received into evidence a letter from her in which she confirms that she and your brother will always be there for you. You have infrequent contact with your older brother who has lived overseas for many years.
78I was told and accept that you grew up in a low socio economic and disadvantaged rural area in a home marred by domestic abuse. I was told and accept that your father was an alcoholic and your mother suffered emotional and physical abuse at his hands. For a time, she had a gambling problem. Your father subjected your siblings to acts of violence. Your parents separated when you were aged 12 years.
79I was told and accept that you have been in a romantic relationship for most of your adult life. You partnered with the mother of your five eldest children when you were aged 17, and your first child was born when you were aged 21. You and your partner married and as I have said, had five children. You separated when you were aged 30. I was told that this had a detrimental effect upon you. Your five children initially resided with your former wife in New South Wales. There was a period when they moved around without keeping in contact with you. The children lived with your former wife for approximately seven years after you separated and when they were not living with you, I was told and accept this caused significant stress and anguish to you. You tried to obtain custody of the children. Your offending in relation to your daughters in Charges 1 and 2 occurred when they visited you in Frankston whilst on school holidays.
80I was told that the children were neglected and physically abused by their mother and her new partner which involved child welfare authorities in New South Wales. Soon after you separated you commenced a new relationship with another woman which resulted in the birth of Donna, earlier referred to. I was told that this relationship was unstable and unhappy.
81In 2017 you were granted custody of your five eldest children and you and your new partner lived as a family at various addresses in and around Frankston. One of your children, a son, is autistic. I was told and accept he requires a high level of care.
82I was told that you suffered trauma as a child and were affected by your father's abusive personality and episodes of violence that occurred in the family home. Your education ended at age 14. You were not academic, and you apparently had behavioural issues at school. At one point you were sent to a hostel in country New South Wales where you witnessed and were involved in a violent knife attack on another child perpetrated by an older person. I was told and accept you were injured whilst trying to intervene. This incident is said to have been a significant turning point in your psychological health.
83You have never had a consistent or stable work history, but you did do work cleaning, trolley collecting and as a security bouncer. Your last job was working in a bottle shop.
84I received into evidence a psychiatric report from Dr Rakov. She assessed you via video link on 16 July 2020. She asked you about the charges with regard to the Matthews matter, when you told her that it involved inappropriate touching, not sexual, and that the complainant did not have a father figure. None of this was true.
85With regard to the offending involving Catrina Wilson, you told Dr Rakov that you have zero memory of the incident. You told Dr Rakov that during this period of your life you had been heavily intoxicated all of the time. You told the psychiatrist that there were previous instances of cuddling and that Miss Wilson had hopped into your bed for a cuddle. You told the psychiatrist that you had been, 'Caught in the crossfire because I was removed from my family/kids'. You may have been drunk and this is no excuse. Any explanation that attempts to imply that a child in some way contributed to the offending must be ignored.
86So far as the offending against Ivy and Abby is concerned you told the psychiatrist, 'I needed that relationship with them because we missed out on so much'. Contrary to the facts, you told Dr Rakov you had said to Ivy, 'This is not normal'. So far as Abby is concerned you told the psychiatrist, 'I fought to have relationships with them as they became teenagers'.
87You told Dr Rakov that throughout your occasions of offending it had been about affection and in your mind, you were trying to have close connections with them. You said that you had been intoxicated at each instance of offending. The psychiatrist thought that your descriptions of your offending were either repressed or minimalised.
88Some of this evidence of what you told Dr Rakov reflects a total misunderstanding by you of the gravity of your crimes against children. It in part helps to explain your offending, but it in no way excuses it.
89You are working as a billet within the prison and you speak to your mother twice per day and you receive visits from her via video link every Sunday. You told Dr Rakov that you would like to complete courses in language, literacy and numeracy whilst in custody. At interview with the psychiatrist you described your mood as being, 'Fine'. You became tearful when discussing having been cut off from contact with your daughters. You told the Dr Rakov that your sleep and appetite is undisturbed. You told the psychiatrist that you feel suicidal every day but you have no plan or intention to act upon this. You instructed your counsel that you have been on suicide watch on a number of occasions whilst on remand.
90Dr Rakov was of the opinion that you may have suffered from an adjustment disorder when first on remand and that you may have been suicidal at that time. Prior to incarceration she thought you met the criteria of being diagnosed as suffering alcohol use disorder, opiate use disorder and benzodiazepine use disorder. Your abuse of alcohol and prescription medication, she thought was problematic.
91I received into evidence certificates of a number of courses that you have completed in custody including courses aimed at directing you to a better way of thinking about relationships with others and courses related to substance abuse. I also received into evidence certificates of urine analysis taken at various times whilst in custody, each showing a negative result in a custodial setting.
92You are receiving anti-depressant medication in custody. I also received into evidence a psychological report from Kerrin Danswan who assessed you for that purpose on three occasions. She was of the opinion you suffer from a major depressive disorder, post-traumatic stress disorder, alcohol use disorder and opioid use disorder. After conducting various tests for risk assessment, Kerrin Danswan was of the opinion that you presently remain a high risk of future sexual re-offending. She thought drug and alcohol counselling and psychological counselling and the sexual offenders program whilst in custody might mitigate the risk of your re-offending in a sexual way.
93Your counsel submitted, and I accept, that you are an alcoholic. You told her and I accept that since your early twenties you cannot recall a day when you did not drink until you were remanded in custody. That I think forms a major fact in the context in which much of this offending against these children occurred.
94In 2012 whilst working as a bouncer you were assaulted and suffered a shoulder injury and nerve damage. You were apparently prescribed lirica, tramadol and panadeine forte and you developed an addiction to prescription medication. You also suffer from psoriasis. I received into evidence a brief report from your former general practitioner (Exhibit 3) which documents much of your past complaints and treatment. He said, inter alia:
'At times he was prone to depression, stress and anxiety, this was particularly prevalent during a prolonged custody fight with his former partner over the custody of their children, who he claimed were being psychologically and physically abused by his former partner and her current partner. He was also down when he was accused of sexually abusing his children'.
95Your counsel submitted that it was to your credit that you fought so hard to remove your children from what she described as an unhealthy situation in NSW with the children's mother and her partner. I do not see the fact that you fought hard to get custody of your children as a fact that mitigates in your favour. To me it seems somewhat hypocritical of you to have been blaming your former wife and her partner for the abuse of your children, when at the same time you were sexually abusing two of your daughters when they visited you.
96Dr Rakov was of the opinion that you do not meet criteria for paedophilic disorder. Her opinion was that an individual who prefers adults sexually, may engage in sexual behaviour with a child while under the influence of drugs or alcohol. Dr Rakov was of the opinion that you are a high risk of similar reoffending should you return to using alcohol and prescription drugs. She was also of the opinion that you remain a chronically high-risk mental state deterioration and suicide. That is in part because whilst you recognise the wrongfulness of your conduct, you have not been able to wholly accept these offences. From what you told Dr Rakov, you continue to rationalise how the offending came about, and in your mind there was a degree of benevolent purpose in what you did.
97Having regard to the circumstances of all of this offending and from what I have read in the psychological and psychiatric evidence led on your behalf, especially the two opinions that consider you a high risk of re-offending in a sexual way, I am of the opinion that you remain a high risk of committing similar offences if the opportunity presents itself. I think your prospects for rehabilitation are poor. There is a need for the sentence I impose to reflect the need to protect the public. I acknowledge that in a custodial setting you have remained alcohol and drug free. I acknowledge you have family support, but you had that at the time that you committed these offences.
98Your counsel submitted that your, 'Precarious mental health concerns and suicide risk', are factors that ought moderate any sentence imposed. She relied on the fifth and sixth limbs of Verdins principles. In passing sentence I have taken all of the evidence related to your mental health into account. From the evidence presented you appear thus far to be coping quite well in prison and you are appropriately medicated.
99You may now regret your conduct towards your children but I think your regret and remorse is born more out of the predicament you now find yourself in rather than remorse based upon a full understanding and appreciation of the repugnant crimes against children that you have engaged in. I have not seen any evidence of appreciation on your part that what you did to these children was legally and morally wrong. That may in part be due to the difficult life that you have had. You come from what appears to have been at times a chaotic family caused by an alcoholic and physically abusive father, and you have had a limited education. You have not had the advantage of discipline that can result from regular employment. Alcohol abuse appears to have been viewed as an important ingredient in your life. If nothing else, alcohol excess seems to have blurred any limited insight that you may have had that what you were doing to these children, especially your daughters, was totally wrong and unacceptable. Morals do not seem to have played much part in your thinking and this may be why when asked, you tend to downplay what you did, or offer an explanation which most people will instantly dismiss.
100In her written submissions your counsel said that whilst in custody you have had some small strokes. No major submission was made on this issue. I have not seen any evidence documenting such occurrences whilst you have been in prison. You receive Panadol Osteo for pain relief from your shoulder injury, Pantoprazole for digestion, cholesterol and arthritis medication, as well as
anti-depressant and psoriasis medications.101Much of your time in custody thus far has coincided with measures taken in prison to ensure that the current corona virus pandemic does not infiltrate the prisons. Thus far those measures have been successful in keeping the virus out of the prison population, but I accept that those measures have made life in prison more burdensome than it would normally be. Prison visits have stopped and movements for prisoners within the prison have been very limited. In passing sentence I have taken all of this into account.
102I will be sentencing you to a term of imprisonment on each of the charges before the court. That of itself has implications for sentencing because of legislative requirements contained in the Act.
103Because I will sentence you to a term of imprisonment on each of the charges, you will be sentenced on Charge 3 on the Henderson Indictment, and the charge in the Matthews Indictment, and each of the charges in the Wilson Indictment as a, 'Serious sexual offender' within the meaning of s.6B of the Act. In determining the length of any prison sentence imposed on each charge where you fall to be sentenced as a, 'Serious sexual offender', protection of the community from you must be the principal purpose for which the sentence is imposed. In order to achieve that purpose, I may impose a sentence longer than that which is proportional to the gravity of the offences considered in the light of their objective circumstances, within s.6D of the Act.
104This does not mean that the principles of proportionality and totality in sentencing are to be disregarded, unless in the exercise of my discretion I consider that the circumstances before me make it appropriate to do so for good reason. I do not consider that a disproportionate sentence is called for. In my view, the overall total effective sentence I will impose will properly and adequately provide for protection of the community.
105I note the position of the prosecution is that I have not been asked to impose a disproportionate sentence.
106Further, s.6E of the Act provides that every term of imprisonment imposed on you as a serious sexual offender for a serious sexual offence must, unless otherwise directed, be served cumulatively on any other sentence I impose.
107Charge 3 in the Henderson Indictment, the charge in the Matthews Indictment and each of the charges in the Wilson Indictment are sexual offences for the purposes of Schedule 1 of the Act. I will be sentencing you as a serious sexual offender on those charges. I will impose some cumulation of the sentence imposed on some of those charges, and order some concurrency, which I regard as appropriate, taking account of all of the circumstances discussed.
108I must also have regard to current sentencing practices for offending of this kind. In The Queen v Kilic (2016) HCA 48 the High Court said current sentencing practices are an important factor to be taken into account by a sentencing judge, but only one of a number of factors, the most important being an assessment of the overall level of offending.
109There are other provisions in the Act that relate to sentencing on these charges that are standard sentencing offences that I must have regard to. I have earlier identified that Charge 3 on the Henderson Indictment, incest, is a standard sentencing offence. So too are Charges 2 and 3 on the Wilson Indictment.
110Pursuant to ss.5A and 5B of the Act, a court must have regard to the standard sentence for a relevant offence. Here, I am sentencing you on charges some of which are not standard sentencing offences, and three of the charges are standard sentencing offences. So far as the standard sentencing offences are concerned, previous cases in this court, and in the Supreme Court, and the explanatory memorandum which accompanied the amendments introducing the standard sentencing provisions, all indicate that the standard sentence for an offence should be viewed as a legislative guidepost as to the middle range of the objective seriousness of that offence. It is one factor that the court must have regard to. The standard sentence is not the starting point for sentencing and does not require a two-stage approach to sentencing. The standard sentence is intended to provide the courts with a legislative guidepost for objective offence seriousness compatible with instinctive synthesis approach to sentencing. In sentencing for standard sentencing offences the court must take into account only the objective factors affecting the relative seriousness of the offence charged, and those objective factors are to be determined without reference to matters personal to a particular offender and wholly by reference to the nature of the offending.
111Further, when imposing a sentence on a charge that is a standard sentencing offence, I must give reasons that refer to the standard sentence and explain how the sentence that I impose on that charge relates to the standard sentence.
112Section 11A(1)(b) of the Act applies when fixing a non-parole period in respect of a total effective sentence imposed in respect of two or more sentences, at least one of which is for a standard sentence. Here, I will be imposing a total effective sentence in respect of seven indictable charges and one summary offence where three of the indictable charges are crimes in respect of which a standard sentence applies. Section 11A(4)(b) will also have application because I will be imposing a total effective sentence of 20 years or more in which event I must fix a non-parole period of at least 70 per cent of the total effective sentence unless I consider it in the interests of justice not to do so. I will be fixing a non-parole period of at least 70 percent of the head sentence.
113On those charges that are standard sentencing charges for the purposes of the Act, I must have regard to sentencing practices for similar standard sentencing offences. In this regard I have been referred to Sentencing Snapshot 232 relating to the offence of persistent sexual abuse of a child under 16 and Sentencing Snapshot 233 for the offence of indecent act with a child under 16. I have also been provided with and have had regard to sentences imposed by other judges of this court for the offences that are standard sentences and for which I must pass sentence upon you. In arriving at my sentences imposed on each charge and overall, I have had regard to all of this information placed before me by both counsel for the parties.
114Ms James stressed the very high level of your offending and submitted any sentence imposed must properly reflect application of the principle of general and specific deterrence and protection of the community.
115Ms Haben-Beer did not dispute the relevant sentencing principles that I must apply here and she recognised that your offending called for a stern sentence. She accepted that your offending had no redeeming features and involved persistent offending against children.
116She stressed your early guilty pleas which she submitted were of considerable value. She also stressed your remorse which I have questioned above as not being genuine. She pointed to your previous good character, your lack of relevant prior convictions, your prospects for rehabilitation and your good family support. She submitted that having regard to your age and general background I should not impose a crushing sentence.
117In passing sentence upon you I generally accept the submissions of Ms James. Your offending is I think properly described as falling within the upper quartile for offending of this kind deserving of condign punishment.
118The sentence I will impose on Charge 3 in the Henderson Indictment, and on Charges 2 and 3 in the Wilson indictment are each the equivalent of the standard sentence for each of those respective charges. In arriving at my sentence, I have had full regard to all of the matters above, and I have weighed the need for the sentence to reflect deterrence (both general and specific) and denunciation. I have also had regard to your personal circumstances as put before the Court by Ms Haben-Beer. Having identified and considered what I consider to be the relevant factors in assessing the appropriate sentence, including the serious nature of your offending and your high degree of culpability, against your pleas of guilty and expressions of remorse, I have formed the opinion that the sentences I will impose on each of the charges subject to a standard sentence is the appropriate sentence in all of the circumstances.
119In fixing a non-parole period I have considered your counsel's submission that I should moderate the fixing of a non-parole period. This I understood to be based on submissions that because you have remained alcohol and drug free in custody your rehabilitation has effectively commenced. Further, you have family support, which as I mentioned earlier, you had when you offended. However, the clear evidence is that you remain at high risk of re-offending in a sexual way and you will need appropriate counselling both in prison and when released. There is thus a need to protect the public. Whilst you have expressed some remorse to your mother, your lack of proper insight into your offending suggests to me that your expressions of remorse cannot be regarded as genuine remorse, but as regret for the situation that now confronts you. You are now aged 41 and still have many years of life ahead of you. In fixing a non-parole period I have taken all of the circumstances here into account. Further, I am of the opinion that as I will be fixing a substantial total effective sentence to reflect the gravity of your offending, it is important that total effective sentence not be in effect diluted by the fixing of a non-parole period that would see you released on parole for an inordinate length of time.
120On Charge 1 in the Henderson Indictment persistent sexual abuse of your daughter Ivy a child under the age of 16, you are convicted and sentenced to a term of imprisonment of twelve (12) years;
121On Charge 2 in the Henderson Indictment persistent sexual abuse of your daughter Abby a child under the age of 16, you are convicted and sentenced to a term of imprisonment of eight (8) years;
122On Charge 3 in the Henderson Indictment incest with your daughter Abby you are convicted and sentenced to a term of imprisonment of ten (10) years;
123On the Charge in the Matthews Indictment of indecent act with a child under 16 years of age, you are convicted and sentenced to a term of imprisonment of three (3) years;
124On Charge 1 in the Wilson Indictment attempted sexual assault of a child under the age of 16 years, you are convicted and sentenced to a term of imprisonment of one (1) year;
125On Charge 2 in the Wilson Indictment sexual assault of a child under the age of 16, you are convicted and sentenced to a term of imprisonment of four (4) years;
126On Charge 3 in the Wilson Indictment sexual penetration of a child under the age of 16, you are convicted and sentenced to a term of imprisonment of six (6) years;
127On the summary charge of committing an indictable offence whilst on bail, you are convicted and sentenced to a term of imprisonment of three (3) months.
128I direct that five (5) years of the sentence imposed on each of Charges 2 and 3 of the Henderson Indictment, and two (2) years of the sentence imposed on the charge in the Matthews Indictment, and four (4) years of the sentence imposed on Charge 3 of the Wilson Indictment, each accumulate upon the sentence imposed on Charge 1 of the Henderson Indictment, making a total effective sentence of 28 years' imprisonment.
129I direct you serve a minimum term of twenty-one (21) years imprisonment before being eligible for release on parole.
130Pursuant to s.6F(1) of the Sentencing Act 1991 I direct that I have sentenced you on Charge 3 of the Henderson Indictment, and the charge in the Matthews Indictment, and on each of the charges in the Wilson Indictment as a, 'Serious sexual offender', within s.6B of the said Act, and I direct that the fact that my having done so be entered into the records of this court. I note that it is agreed that the offence in Charge 1 of the Wilson Indictment is a sexual offence for the purposes of the operation of s.6B in Part 2A of the Act.
131For the purposes of s.6AAA of the Act I state I have imposed sentences being terms of imprisonment and I have reduced the overall total effective sentence I would have imposed but for your pleas of guilty. Had it not been for your pleas of guilty to the charges I would have imposed a total effective term of imprisonment of 35 years imprisonment and I would have fixed a non-parole period of 28 years imprisonment.
132I note that you have served 553 days pre-sentence detention. Accordingly, pursuant to s.18(4) of the Act 1991 I declare that the period of 553 days be reckoned as time already served under the sentences passed this day and be noted accordingly in the records of the court and deducted administratively.
133Because you have been convicted of these crimes you are a registrable offender within the meaning of the Sex Offenders Registration Act 2004 with reporting obligations for life.
134MS JAMES: If it pleases the court, my friend and I had calculated the
pre-sentence detention at 555 days, rather than 553.135HIS HONOUR: Very well. Well the pre-sentence detention will be 555 days. I will make that amendment.
136MS JAMES: As the court pleases.
137MS HABAN-BEER: As the court pleases.
138HIS HONOUR: Do you have any matters that you wish to raise,
Ms Haban-Beer?139MS HABAN-BEER: No, Your Honour. No, I don't.
140HIS HONOUR: Very well. Thank you. Would you terminate the transmission to the prison, please.
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