Director of Public Prosecutions v Hendley
[2021] VCC 1777
•5 November 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TREVOR HENDLEY |
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JUDGE: | Judge Trapnell | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 September 2021 | |
DATE OF SENTENCE: | 5 November 2021 | |
CASE MAY BE CITED AS: | DPP v Hendley | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1777 | |
REASONS FOR SENTENCE
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Subject:Criminal law – Sentence
Catchwords: Sentencing – Indecent assault – Sexual penetration of a child under 16 – Indecent act with or in the presence of a child under 16 – Warning to victim – Serious breach of trust – Offending conduct increased in stages – General deterrence – Denunciation – Just punishment – Serious example of indecent assault – Serious examples of sexual penetration of a child under 16 – Serious examples of indecent act with a child under 16 – Paedophilic disorder – Adjustment disorder with mixed anxiety and depression – No evidence of personality disorder – Verdins principles not engaged – Guilty plea at earliest forensically reasonable time on one charge, late plea on all others – Utilitarian benefit of guilty plea during COVID-19 pandemic – Otherwise good character – Mature aged offender – Stable family situation – Good employment history – Significant delay between offences and detection – Delay between being charged and sentence akin to punishment – Excellent prospects of rehabilitation – Totality important sentencing consideration
Legislation Cited: Sentencing Act 1991; Sex Offenders Registration Act 2004
Cases Cited:DPP v Dalgliesh (a Pseudonym) [2016] VSCA 148; Adamson v The Queen (2015) 47 VR 268; R v G [2009] 1 AC 92; Talbot (a Pseudonym) v The Queen [2016] VSCA 218; DPP v Toomey [2006] VSCA 90; R v Sposito Unreported, Court of Criminal Appeal, 8 June 1993; R v MJ [2000] VSCA 66; R v Verdins (2007) 16 VR 269; Brown v The Queen (2020) 62 VR 491; Williams (a pseudonym) v The Queen [2021] VSCA 35; Rodriguez v DPP (Cth) (2013) 40 VR 436; R v Kilic (2016) 259 CLR 256; DPP v Zhuang (2015) 250 A Crim R 282; Stalio v The Queen (2012) 46 VR 426; Mush v The Queen [2019] VSCA 307; Gordon v The Queen [2013] VSCA 343
Sentence:Total effective sentence of 13 years’ imprisonment with a non-parole period of eight years
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr B L Sonnet Mr E Goldman | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr T Sawyer | Aughtersons Lawyers |
HIS HONOUR:
1Trevor Ian Hendley, you have pleaded guilty to charges on two indictments. On indictment ending No. 692.1 (‘the first indictment’), one charge of indecent assault,[1] and on indictment No. 692.2 (‘the second indictment’), three charges of sexual penetration of a child under 16[2] (Charges 1, 4 and 6) and three charges of indecent act with or in the presence of a child under 16[3] (Charges 2, 3 and 5).
[1] Contrary to s 44(1) of the Crimes Act 1958 as amended by the Crimes (Sexual Offences) Act 1980.
[2] Contrary to s 45(1) of the Crimes Act 1958 as amended by the Crimes (Amendment) Act 2000.
[3] Contrary to s 47(1) of the Crimes Act 1958 as amended by the Crimes (Sexual Offences) Act 1991.
2The maximum penalty for indecent assault (Charge 1 on the first indictment) is five years’ imprisonment. The maximum penalty for sexual penetration of a child under 16, where the child was aged under 10 years (Charge 1 on the second indictment), is 25 years’ imprisonment. The maximum penalty for sexual penetration of a child under 16 otherwise, is 10 years’ imprisonment (Charges 4 and 6 on the second indictment). The maximum penalty for indecent act with or in the presence of a child under 16, is 10 years’ imprisonment (Charges 2, 3 and 5 on the second indictment).
The Facts
3The prosecution filed an Amended Summary of Prosecution Opening For Plea for each indictment, both dated 16 September 2021,[4] which your counsel told me I can treat as a statement of agreed facts.
[4] Exhibits P1 and P2.
Charge 1 on the first indictment: indecent assault
4You were aged 26 to 27 years when you indecently assaulted Natalie Wagner,[5] who was aged between five and six years at the time of the offence.
[5] A pseudonym
5Ms Wagner’s mother is your cousin. When Ms Wagner was about five years old, her family would often visit her maternal grandparents who lived in Carnegie. She would often stay for a week at a time. On such visits, you would also visit your parents. Ms Wagner estimates you were about 10 to 15 years older than she was.
6Ms Wagner would play games with her sisters and you. A number of incidents occurred during this time which made her feel uncomfortable with you, including an incident where you kissed her on the lips.[6] She tried to distance herself from you.
[6] There is no charge relating to this conduct. It is led only as context evidence.
7On an unknown date between 5 August 1986 and 4 August 1987, relatives visited Ms Wagner’s home at Kangaroo Ground. You and your family visited on this occasion. Ms Wagner was about five or six years old at the time.
8Ms Wagner’s grandmother brought a notepad and pencil so they could play games. Ms Wagner recalls she and you ended up alone at the back of the house where there was an old club lounge suite. Ms Wagner was sitting on your knee sideways and was laying back. You placed the pencil on the outside of her vagina underneath her underwear and moved it around gently.
9Ms Wagner cannot recall how long this incident lasted or how it ended.
10On 7 December 2016, Ms Wagner told her sister, Michelle Shaw[7], about this incident.
[7] A pseudonym.
11On the same day as confiding in her sister, Ms Wagner went to the Malvern police station and spoke with Detective Senior Constable Jodie Clewley. However, she did not make a formal statement at that time.
12On 31 July 2018, Ms Wagner made a formal statement to investigating police.
13On 7 February 2019, you were arrested and interviewed at the Knox police station. During the interview, you denied offending against Ms Wagner. You initially denied knowing Ms Wagner, however later you admitted she was related as a cousin. You agreed you visited the Kangaroo Ground address, perhaps once. You denied ever kissing Ms Wagner on the lips and you denied placing a pencil on the outside of her vagina.
Charges 1 and 2 on the second indictment
General background
14The first victim on this indictment is Eloise Barrett.[8] She was aged between four and seven years at the time of your offending and you were aged between 42 and 46 years at that time.
[8] A pseudonym
15She lived with her family in Knox. You lived next door with your wife and two children, Peter and William.[9] William is the same age as Ms Barrett.
[9] Pseudonyms
16Ms Barrett’s parents were friendly with you and your wife. Ms Barrett went to the same school as William, and they would often play together at their respective homes. Ms Barrett remembers first playing with William at your home when she was three years old. They would often play in the playroom at the back of your house.
Charge 1: Sexual penetration of a child under 16
17On an unknown date between 26 September 2003 and 31 December 2006, Ms Barrett recalls an occasion when she was playing ‘hide and seek’ with William. She went to hide in the computer room, but you were working in that room. You picked her up, put your hand down her pants and digitally penetrated her vagina.
18Ms Barrett says this was the only time an offence occurred in the computer room; on all other occasions the offences occurred in the front room of your house when your wife was not home. On most occasions when this offending occurred Ms Barrett would pretend to be asleep.
19Ms Barrett ceased going to your home to play with William when she was aged about seven years.
20This is a course of conduct charge.[10] Ms Barrett asserted the offending conduct occurred from the ages of four to seven years and it happened on six occasions.
[10] Criminal Procedure Act 2009 (‘CPA’) s 159 (3) and schedule 1, cl 4A. See also Sentencing Act 1991 (‘SA’) s 5(2F) and McCray (a pseudonym) v The Queen [2017] VSCA 340, [17]–[18], [29]–[30] (Maxwell P and Croucher AJA).
Charge 2: Indecent act with or in the presence of a child under 16
21During this same period, you also picked up Ms Barrett, put your hand down her pants and then rubbed her vagina.
22This is also a course of conduct charge. Ms Barrett asserted the offending conduct occurred from the ages of four to seven years old and it happened on six occasions.
Complaint and report to police
23On 25 February 2018, Ms Barrett told her mother about the sexual abuse you had committed against her.
24On 3 June 2018, she made a formal statement of complaint and on 2 August 2019, she made a second statement to investigating police.
Charges 3, 4, 5 and 6 on the second indictment
General background
25The second complainant on this indictment is Celia Day.[11] She was aged between 11 and 12 years at the time of your offending and you were aged between 44 and 46 years at that time.
[11] A pseudonym
26Ms Day lived with her family in Knox. You lived across the road with your family. Ms Day would often play with your children, including in the street and at each other’s houses.
Charges 3 and 4: Sexual penetration of a child under 16 and indecent act with or in the presence of a child under 16
27On an unknown date between 27 April 2005 and 26 April 2007, when Ms Day was about 11 or 12 years old, she was playing with your son, William, in the playroom at your house. You entered the room and told Ms Day you wanted to show her something on the computer in your office. You sat on a chair and picked her up and sat her on your lap. You started to rub and squeeze her breast with your hand over her clothing.
28You then stood her up and pulled down her pants and underwear. You rubbed her clitoris and inserted your finger into her vagina. The incident stopped after a while and Ms Day returned to the playroom.
29These are course of conduct charges. The conduct included pulling Ms Day’s pants and underwear down, rubbing her clitoris and inserting your fingers into her vagina. This occurred on six occasions.
30You also touched Ms Day’s breast on six occasions when she visited your house to play with William.
31Your offending ceased when Ms Day was 12 years old, at the end of primary school.
Charge 5: Indecent act with or in the presence of a child under 16
32You would also sit on your chair in the computer room and expose your penis to Ms Day. You would use her hand to masturbate your penis. This is a course of conduct charge, with this conduct occurring on six occasions.
Charge 6: Sexual penetration of a child under 16
33During this period, you also inserted your penis into Ms Day’s mouth. This is a course of conduct charge, with this conduct occurring on two occasions.
Warning to Ms Day
34On the first occasion when you fondled Ms Day’s breasts, you told her, ‘Don’t tell anyone’ and, ‘This is our secret’. You repeated this warning to her on other occasions.
Complaint and report to police
35On 7 January 2019, Ms Day made a complaint to her brother and parents regarding the sexual abuse you perpetrated on her. She told her brother and parents you had ‘touched’ her.
36On 9 January 2019, she made a formal statement of complaint to investigating police.
Arrest and interview
37On 7 February 2019, you were arrested and interviewed at the Knox police station.
38You denied the offending against Ms Barrett. During the interview, you told police you lived next door as a neighbour. You agreed Ms Barrett would come over and play with William and they would play in the playroom at your house. You did not recall occasions when you were home and Ms Barrett was in the playroom. However, you agreed you played ‘tickle’ games with William and Ms Barrett. You denied rubbing Ms Barrett’s vagina with your finger over her clothing, picking her up and taking her to the front room, rubbing her vagina in the front room and digitally penetrating her vagina. You denied on any occasion when you tickled Ms Barrett, you then carried her away to another room and rubbed her vagina or rubbed and digitally penetrated her vagina. You also denied an occasion where you took Ms Barrett into the computer room and committed the charged acts.
39You denied the offending against Ms Day. You agreed you knew Ms Day as she used to play with your sons. You said she used to visit your home up until the end of primary school and you used to play an innocent ‘tickle game’ with her and you would have just shown photos to Ms Day on your computer. You agreed she sat on your lap, but you denied touching her breasts over or under her clothes. You also denied touching her vagina over her clothes, pulling down her pants, touching her vagina or rubbing her clitoris, and kissing her. You said Ms Day would visit your home about three times per week. You denied digitally penetrating her vagina, forcing her to masturbate your penis, and inserting your penis into her mouth.
Victim Impact
40Three victim impact statements were tendered, one made by Ms Wagner,[12] another by Ms Barrett,[13] and the third by her mother, Annette Barrett.[14] Your counsel did not object to the victim impact statements being tendered and did not object to their contents.
[12] Exhibit P3.
[13] Exhibit P4.
[14] Exhibit P5. Annette Barrett is a pseudonym.
41Ms Day declined to file a victim impact statement. She told the informant she is too emotionally and psychologically affected by the offending and would find it too difficult to prepare such a statement. Nonetheless, where no victim impact statement is relied upon, a sentencer may draw reasonable inferences from the known circumstances regarding the likely impact of an offence upon any victim and their immediate family.[15]
[15] See R v Miller [1995] 2 VR 348, 354 (Southwell, Ormiston and McDonald JJ); R v Lomax [1998] 1 VR 551, 559–560 (Ormiston JA, Winneke P and Hedigan AJA agreeing); R v Rankin [2001] VSCA 158 [10] (Winneke P, Vincent JA and O’Bryan AJA agreeing); MA v The Queen [2012] VSCA 214 [83] (Neave JA, Bongiorno JA and Whelan AJA agreeing).
42Moreover, the law presumes harm in circumstances where a child engages in sexual acts with an adult and consent, or ostensible consent, of a child to a sexual act with an adult is not a mitigating factor.[16]
[16] See Clarkson v The Queen (2011) 32 VR 361.
43On behalf of the Victorian community, I denounce your conduct and I will take into account the contents of each of these statements, as well as Ms Day’s reasons for declining to provide a statement and the likely impact of your crimes on her, in the sentences I impose on you. This approach was not objected to by your counsel.
44It is clear your offences have had a devastating effect on each of your victims. The victim impact statements were brave, eloquent and moving. They describe the insidious nature of sexual offences against children, and the profound and long- lasting effects they have on the primary victims, as well as their family and friends.
45This case is simply another example of the extreme trauma suffered by the victims of child sexual abuse. For a few minutes of sexual gratification, you have completely destroyed these young women’s lives.
Ms Wagner
46Ms Wagner’s victim impact statement was read aloud in Court by counsel for the Director.
47You abused her when she was five and six years old. As her mother’s cousin, and because you were an adult, she trusted you. At the time of your abuse, she felt confused, alone, scared, and ashamed, as though it was her fault. Because you abused her in her own home, she never felt safe there again. She felt sick and anxious at family gatherings where she knew you would be present. At family gatherings, you would chase her, touch and kiss her inappropriately.
48She did not tell anyone for more than 30 years. She was fearful if she told anyone, they would think less of her and she felt ashamed. She was afraid to tell her parents because she did not want them to blame themselves. Your abuse has affected her relationship with her parents. She also felt angry with herself she had let you get away with it.
49Although she was filled with anxiety and self-doubt, she finally told her sister and then police you had abused her as a child.
50Now she has her own children, she is very overprotective and finds it hard to give them any freedom. She is filled with anxiety they too will be sexually abused by someone, perhaps at a sleepover, in a shop, or when using a public toilet. She feels exhausted and mentally drained by this.
51Your abuse has impacted her other sexual experiences. After hiding it for years, she found it very hard to tell her husband she had been abused because she felt so ashamed. She spent days in bed, an emotional wreck, while she tried to decide what to do.
52When she was told you had also abused other girls, she felt guilty. She felt if she had told someone sooner, it might have stopped you from abusing other children. She finds this thought really hard to deal with.
53Although she was relieved when she found out you were pleading guilty, she was also fearful you would hurt her or her children.
54Your abuse of her as a young child has affected most of her life. Her confidence has suffered, and she feels damaged. She struggles with her mental health and she sees a counsellor. She feels like she has never been able to reach her full potential in life.
Ms Eloise Barrett
55Ms Eloise Barrett read her victim impact statement aloud to the Court via Webex.
56She did not tell anyone about her abuse until she was 18 years old. At that point, she contemplated suicide because she could no longer deal with the pain she had bottled up inside. Instead, she found the courage to tell someone what you had done to her when she was a child.
57Your abuse has affected every part of her life. Her mental health has been impacted. She has felt very depressed and like she was drowning with anxiety. She has problems with her self-esteem and binge eats to calm her nerves.
58She was unable to focus on her schoolwork. During high school, she spent more time at home than at school. This in turn made it very difficult for her to secure employment. She rarely turned up to school or work, and eventually lost her job. Some days she could not get out of bed for work and would have to call in sick, being unable to tell her employer why.
59She did not feel safe in her own home. Your kitchen looked into her bedroom window, so she kept the window shutters closed, leaving her bedroom darkened. As a child, she was too scared to sleep in her own room and instead slept on a mattress in her parents’ bedroom for many years. After she reported your abuse, she experienced nightmares wherein you were in her home and were going to ‘get’ her because she had finally reported you to the police.
60She hated going into her backyard or laying by the pool because you could see her from next door. Because your homes were on a dead-end street, she had to go past your house to get to her house. She was fearful she would pass you on the street or you would be outside your home.
61Eventually, her parents decided to move to another suburb because of the deterioration in her mental health. They had to take out a new mortgage, at a time in their lives when they should have been finalising their mortgage. Moving to a new house helped Ms Barrett get back on track.
62You destroyed the friendship she had with your son. They had been friends since they were babies.
63You robbed her of having her first sexual experience with a boyfriend she loved. She says she cannot share or feel love with someone else. When she wants to be intimate with someone, it brings back memories of your sexual abuse and she shuts down. Being sexually intimate with someone feels bad, dirty and wrong to her. She struggles to ever see herself in a romantic relationship.
64She has found support in her friends and family, and finds exercise helps her push through and gives her focus.
Ms Annette Barrett
65Ms Annette Barrett read her victim impact statement aloud to the Court via Webex.
66She feels betrayed by you. She was best friends with your wife, and her daughter, Eloise, was best friends with your son, William. Her three sons were best friends with your other son, Peter.
67Her world was turned upside down when Eloise was finally brave enough to tell her what you had done. She blamed herself, feeling she had failed to protect Eloise.
68Living next door to you made her feel like a prisoner in her own home. Her family lived in fear, panic, ongoing heartbreak and disbelief. They were fearful to go into their own back yard or front garden. They were fearful to go out onto the street in case they crossed paths with you.
69She is kept up at night thinking about your abuse of her daughter. She is overwhelmed with shock. It haunts her to this day and affects every part of her life.
70She watched Eloise’s mental health deteriorate, as she stayed in her darkened bedroom and was barely able to talk about the abuse. Annette would be awoken by the sound of Eloise screaming as she had nightmares and she would get out of bed to console her daughter.
71Moving to a new house has been like a ‘band aid’. They no longer have to live next door to you, but you have still destroyed the way they lived. Taking out a new mortgage when Annette and her husband are in their 50s has had a huge financial impact on them. Eloise blames herself for this financial burden.
72Annette has experienced mood swings, depression, and anxiety. Communication in the family, which was once easy, is now strained. They live in daily misery because of you.
Discussion of Victim Impact
73I am mindful of the observations of the Court of Appeal in DPP v Charlie Dalgliesh (a Pseudonym):[17]
… as this Court explained in Clarkson v The Queen,[18] the absolute prohibition on sexual activity with a child is ‘founded on a presumption of harm’. The significance of the violence and harm which such conduct entails cannot be overstated.
[17] [2016] VSCA 148 [47] (Maxwell ACJ, Redlich and Beach JJA) (‘Dalgliesh [No. 1]’).
[18] (2011) 32 VR 361, 364 [3] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA).
74The Court of Appeal has on numerous occasions noted also it is ‘a well-known fact that young victims of incest carry the scar for their lives’.[19] While you have not committed incest, in my opinion this aphorism is apposite in this case. Moreover, in Adamson v The Queen,[20] the Court of Appeal quoted with approval from the judgment of Baroness Hale in R v G[21] where Her Ladyship said:
More importantly, anyone who has practised in the family courts is only too well aware of the long term and serious harm, both physical and psychological, which premature sexual activity can do.
[19] R v KHB [2004] VSCA 219 [105] (Gillard AJA) quoted in DPP v Charlie Dalgliesh (a Pseudonym) (2017) 271 A crim R 1, 16 [70] (Ferguson CJ, Weinberg and Whelan JJA) (‘Dalgliesh [No. 2]’). See also DPP v Tewksbury (a Pseudonym) (2018) 271 A Crim R 205, 221 [72] (Tate, Kyrou JJA and Kidd AJA).
[20] (2015) 47 VR 268, 280 [18] (Warren CJ, Redlich and Weinberg JJA).
[21] [2009] 1 AC 92, 108-9 [48]–[49]. See also Clarkson v The Queen (2011) 32 VR 361, 370–1 [32].
75The Court of Appeal has also recently reaffirmed the important role restorative justice plays in the criminal justice system. In Talbot (a Pseudonym) v The Queen[22] the Court approved the statement of Vincent JA in DPP v Toomey[23] concerning the notion of social rehabilitation. In Toomey Vincent JA said:
It is well to bear in mind that the rehabilitation of the victim of sexual abuse may often be more difficult to achieve than that of the perpetrator. Frequently the damage will be profound and a long time will pass before it can be addressed at all. In the meantime, childhood will be destroyed, self esteem damaged, educational and career opportunities lost and the capacity to form and maintain relationships seriously impaired. The notion to which I have adverted underpins, I believe, such concepts as restorative justice, just punishment, the vindication of rights and the attribution of responsibility based on moral culpability. The vindication of the victim in cases of this kind, in particular, is profoundly important if the criminal justice system is to perform its role properly.[24]
[22] [2016] VSCA 218 [39] (Weinberg and Osborn JJA).
[23] [2006] VSCA 90.
[24] Ibid [22]. See also DPP v DDJ (2009) 22 VR 444, 454 [40] (Maxwell P, Vincent and Neave JJA) and Pitt (a Pseudonym v The Queen [2020] VSCA 73 [52] (Priest and Weinberg JJA) (‘Pitt’).
76The impact of your abhorrent and grievous offences, particularly on the three primary victims, requires ‘perceptible recognition and vindication’.[25] Accordingly, I take into account the impact of your crimes on Ms Wagner and Ms Barrett and the likely impact of your crimes on Ms Day in sentencing you. Clearly, your offending has had profoundly traumatic effects upon all your victims and serious impacts upon their families.
[25] Pitt [52].
Offence Seriousness
77Sexual penetration of a child under the age of 16 where the child is under the age of 10 years[26] is a very serious criminal offence carrying a maximum penalty of 25 years’ imprisonment, which is the highest fixed maximum penalty in the criminal calendar. This unequivocally indicates the seriousness with which the legislature, on behalf of the Victorian community, views these offences[27] and ‘reflects the community’s abhorrence of sexual crimes against children’.[28]
[26] Charge 1 on Indictment K11509692.2.
[27] See eg Nguyen v The Queen (2016) 311 FLR 289, 332 [146] (Redlich JA, Tate and Whelan JJA agreeing); Dalgliesh [No. 1] [126].
[28] Dalgliesh [No. 1] [78], [123], [126]; Dalgliesh [No. 2] [75].
78Sexual penetration of a child under 16, indecent act with or in the presence of a under child 16 and indecent assault of a child are also serious offences.
79Your counsel conceded these are all serious offences. He described your offending as being ‘abhorrent, repugnant and involv[ing] a serious breach of trust’. I agree with that overall characterisation of your offending conduct.
80Moreover, after committing the first sexual offence against Ms Barrett and the first sexual offence against Ms Day, you had opportunities to pause and reflect on your conduct and its impact on your innocent victims and to desist, but you persisted, and, in my opinion, the objective gravity of your offending conduct increased by stages.
81In total, you committed one criminal act against Ms Wagner, 12 criminal acts against Ms Barrett and 20 criminal acts against Ms Day. A total of 33 criminal acts were committed by you against three innocent children, one a relative and the other two daughters of your neighbours, two of whom were under your roof at the time and temporarily in your care, and the other was in her home where she at a right to feel safe.
82This was truly appalling conduct. The breach of trust in each case was very serious. You repeatedly debauched these young girls, one aged only about four years at the time, for you own selfish sexual gratification, with devastating consequences for all three of your victims. This is indeed grave offending calling for condign punishment.
83Sexual offending by adults against vulnerable children is a ‘most serious blight on society’.[29] The Victorian Court of Appeal, and its predecessor, have emphasised on numerous occasions the harm sexual offending against children causes to the innocent victims and the community at large, and that such offending calls for condign punishment.[30] As Hedigan AJA, adopting an earlier statement of Marks J in R v Sposito,[31] put it in R v MJ:[32] ‘A society which fails to protect its children from sexual abuse by adults, particularly those entrusted with their care, is degenerate’.[33]
[29] DPP (Vic) v Dalgliesh (a Pseudonym) (2017) 262 CLR 428, 447 [57] (Kiefel CJ, Bell and Keane JJ).
[30] See eg R v Wayland (unreported, Court of Criminal Appeal, Crockett, Southwell and Hampel JJ, 14 September 1992) 3–4 (Crockett J, Southwell and Hampel JJ agreeing); R v Sposito (unreported, Court of Criminal Appeal, Marks, Hampel and McDonald JJ, 8 June 1993) 4–5 (Marks J, Hampel and McDonald JJ agreeing); R v Ware [1997] 1 VR 647, 653 (Hedigan AJA, Winneke P and Hayne JA agreeing); R v Wakime [1997] 1 VR 242, 244 (Winneke P, Hayne JA and Hedigan AJA agreeing); R v WEF [1998] 2 VR 385, 387 (Winneke P, Charles JA and Hedigan AJA); DPP v VH (2004) 10 VR 234, 237–238 [11], (Callaway JA, Buchanan JA agreeing), 241 [23] (Eames JA); DPP (Vic) v OJA (2007) 172 A Crim R 181, 196–7 [33] (Nettle JA, Ashley and Redlich JJA agreeing); DPP v CPD (2009) 22 VR 533, 546–547[54]–[56] (Maxwell P, Redlich JA and Robson AJA); DPP v DDJ (2009) 22 VR 444, 453–454 [36]–[40] (Maxwell P, Vincent and Neave JJA); DPP v TDJ [2009] VSCA 317, [14]–[19] (Maxwell P and Neave JA); Reid (a Pseudonym) v The Queen (2014) 42 VR 295, 310 [83]; Sutton (a Pseudonym) v The Queen [2015] VSCA 251, [25]–[28] Maxwell P and Redlich JA.
[31] Unreported, Court of Criminal Appeal, 8 June 1993, p 4.
[32] [2000] VSCA 66.
[33] Ibid [17]. See also DPP v Toomey [2006] VSCA 90 [18]–[19] (Vincent JA) (‘Toomey’).
84General deterrence assumes significant importance as a sentencing consideration,[34] as does denunciation of such conduct in order to preserve community standards, which should serve to protect children.[35] Just punishment also looms large as an important sentencing principle.
[34] See eg Browne (a Pseudonym) v The Queen [2015] VSCA 274 [71] (Robson AJA); Toomey [10] (Buchanan JA, Vincent and Nettle JJA agreeing); Ryan v The Queen (2001) 206 C.L.R. 267, 283 (McHugh, J).
[35] See Dalgliesh [129]; Browne (a Pseudonym) v The Queen [2015] VSCA 274 [71] (Robson AJA); Toomey [10]; Ryan 283 (McHugh, J); DPP v G [2002] VSCA 6 [9]–[10] (Winneke P).
85The Director submitted the charge on the first indictment is a serious example of indecent assault. I accept this characterisation of your offending conduct. The Director relied on the following circumstances, which I accept:
• Ms Wagner was particularly young, being aged five to six years at the relevant time.
• The disparity in relative ages, the accused being aged 26 to 27 years.
• Contact was made with the victim’s vagina underneath her underwear.
• The offence was committed in Ms Wagner’s home where she was entitled to feel safe.
• The offence was committed in brazen circumstances.[36]
• The impact of the offending on the victim.
[36] See eg Hughes v The Queen (2017) 263 CLR 338, 362 [59] (Kiefel CJ, Bell, Keane and Edelman JJ),401–2 [168]–[169] (Nettle J).
86The Director submitted Charges 1, 4 and 6 on the second indictment are very serious examples of sexual penetration of a child under 16 and Charges 2, 3 and 5 are also very serious examples of indecent act with a child under 16. I accept this characterisation of your offending conduct.
87In respect of Charge 1 on the second indictment, the Director relied on the following circumstances, which I accept:
• Whilst it is a statutory aggravating circumstance that Ms Barrett was under the age of 10 years at the relevant time and, accordingly, the maximum penalty for this offence is thereby increased to 25 years’ imprisonment, I note she was particularly young when the offending commenced, being aged only about four years at that time. Having made that observation, I am aware I must be careful not to doubly punish you in respect of this circumstance.
• The disparity in relative ages, the accused being aged 42 to 46 years.
• The offending occurred over a significant time period.
• The offending occurred on six occasions.
• The breach of trust involved — the victim was playing with your son in your home with her parent’s permission.
• The offence was committed in brazen circumstances.
• The impact of the offending on the victim.
88The Director made similar submissions regarding the remainder of the charges on the second indictment, which I also accept, although I accept Ms Day was older than Ms Wagner and Ms Barrett, being aged 11 to 12 years at the relevant time, however, in her case, you repeatedly warned her not to tell anyone about your offending conduct.
89As I noted earlier, it is also significant all the charges on the second indictment are course of conduct charges.[37] In sentencing you for these offences I must sentence you within the maximum penalty for the charged offence but must reflect the totality of your offending conduct.[38] As a result, sentences for course of conduct charges are likely to be higher than for equivalent conduct prosecuted as a single incident on a ‘first occasion’ basis. In this respect, sentencing for course of conduct charges will be very similar to the way courts currently sentence for rolled-up charges.[39]
[37] See CPA s 159 (3) and schedule 1, cl 4A.).
[38] See SA s 5(2F).
[39] See McCray (a pseudonym) v The Queen [2017] VSCA 340, [17]–[18], [29]–[30] (Maxwell P and Croucher AJA; Crawford v The Queen [2018] VSCA 113 [43]–[44] (Maxwell P and Kyrou JA.
Personal Circumstances
90You were born on 2 August 1960 and are presently 61 years old. You were aged 26 to 27 years at the time of committing the offence against Ms Wagner (Charge 1 on the first indictment). You were aged 42 to 46 years at the time of committing the offences against Ms Barrett and 44 to 46 years at the time of committing the offences against Ms Day.
91You were assessed on 14 September 2021 by Ms Carla Ferrari, a forensic psychologist engaged by your legal representatives. She prepared a psychological report, dated 16 September 2021, which was tendered at the plea by your counsel.[40]
[40] Exhibit D2.
92You were born in Ringwood and raised in Park Orchards by your parents who remain married and currently reside in Knox.
93Your father is aged 87 years and is losing his sight and his health is slowly deteriorating. Your mother is aged 85 and she is in good health. As a result of the COVID-19 pandemic you have had limited contact with your parents in recent times.
94At the time of your consultation with Ms Ferrari, your parents were unaware of your current charges as you were concerned about the impact this may have on their health. At your plea, your counsel told me your parents now know you have been charged with these offences.
95You have two younger siblings, a brother Neil, aged 58, who resides in Queensland and a sister Angela, aged 56, who resides in Knox. You had a positive relationship with your siblings growing up however in adulthood they maintain only intermittent contact with you on special occasions such as birthdays and Christmas, explaining each is busy with their own families and lives. You had another younger brother who passed away at birth.
96You had a good childhood and were actively involved in Scouts Australia from early childhood until you were 18 years old. Your father was a District Leader of Scouts.
97Your parents modelled a healthy relationship and were encouraging and supportive of you. You denied any family violence or trauma and described your parents as firm but fair disciplinarians. Your father worked as a teacher and then became a fitter and machinist, and your mother worked as a qualified seamstress.
98You told Ms Ferrari you struggled with literacy from Year 3 or 4 when you contracted severe glandular fever and were bedridden for several months, requiring you to relearn to mobilise yourself. You were subsequently diagnosed with dyslexia and reported you continue to struggle with reading, writing, and completing paperwork.
99During secondary school, teachers would indicate you were often disruptive or distracted when you did not understand your schoolwork, or you would simply withdraw from activities.
100You had a stable group of friends at school, however encountered difficulties with bullying towards the end of secondary school, explaining your friendships began to deteriorate as your classmates began forming relationships and coupling off. You were the only one of your friendship group not to have a girlfriend, which was difficult for you and led to you feeling as though you were ‘an outsider’ to your peers.
101You completed Year 12 at Mitcham Technical School and commenced an apprenticeship as a fitter and machinist at Vickers Australia from 1978 to 1985. You had to complete an English course whilst undertaking your apprenticeship owing to your poor literacy. You worked as a fitting machinist for approximately nine years until the company closed its Victorian operations and dispersed jobs interstate.
102You then provided basic servicing and oil changes on motor vehicles before becoming a console operator/service attendant for Shell for approximately two years. You resigned after you witnessed a woman with a pistol in her purse, reinforcing your concerns regarding service stations being high-risk targets for armed robberies.
103You had several other jobs with different companies working in various maintenance and fitter machinist roles. You were retrenched three times between 1991 and 1997 and most of your jobs have lasted two to three years. During the course of your employment, you have undertaken a number of certificates and courses to upskill, with the last course being your dogman ticket.[41]
[41] See below at [160] and Ex D3.
104Since commencing employment in approximately 1998 with ANCA, a machining manufacturer in Bayswater, you have advanced through different positions within that company and were most recently employed as a machine tool builder supervisor. You resigned from that position in the week prior to your assessment interview with Ms Ferrari because of your pending criminal charges. You told Ms Ferrari you were devasted by this.
105You told Ms Ferrari your first serious relationship was in your 20s and lasted six months. You denied any sexual activity or intimate behaviour in the relationship. You ended the relationship as your girlfriend was starting to become involved in antisocial behaviour and the lifestyle she was leading was not aligned with your beliefs and values.
106Within a few months of ending this relationship, you met your wife, Joy, and proposed within your first year of dating. You married in 1992. You reported your relationship with Joy has always been supportive and positive, and you have never had any periods of separation.
107At the plea, your counsel told me Joy found out about these charges when you were arrested.
108The charges you are facing have devastated Joy and destroyed your marriage. Communication between the two of you is minimal and you have ceased any intimacy. Despite this, she remains supportive of you to a degree but has indicated she does not wish to continue your marriage, and you accept this.
109You have two sons; William, aged 22, and Peter, aged 24, who both reside in the family home. William works full-time as a carpenter and Peter works in pathology at the Peter MacCallum Cancer Centre as well as studying sports marketing at university. You supported your sons during their junior playing careers at the Croydon Junior Football Club and the Coldstream Football Club.
110At the time of your assessment with Ms Ferrari, your sons were unaware of these charges, as your wife had told you not to tell them until the day you are sentenced. At the plea, your counsel told the Court your sons became aware of the charges in the days leading up to the plea.
111Peter is the President of the local sports club and you did not want to jeopardise your children’s friendships, sponsorships, or positions because of your mistakes.
112You have a number of work colleagues whom you consider friends. At the plea, your counsel told me some of your friends from work know about the offences you have been charged with. You also have a small group of online gaming acquaintances you regularly communicate with and this extends beyond gaming; you know details of their lives, families and work.
113You rarely have a social life, spending your time between work and your family with no time for your own interests or pursuits. You admitted owing to the charges you have become largely isolated from these friendship groups because of your shame and embarrassment. You did not want to make others feel uncomfortable if they were aware of your behaviour.
Mental Health History
114In your interview with Ms Ferrari, you denied any previous history of mental health diagnoses and said you have never had contact with a psychologist or psychiatrist. You have never been on psychotropic medication, nor had any psychiatric admissions.
115You denied any history of deliberate self-harm or suicide attempts, however admitted when you were initially charged and your employer had indicated you would not be permitted to return to work without a letter from your lawyers outlining the charges, you considered putting a screwdriver through your chest. Thoughts of your sons have stopped your from acting on any further suicidal thoughts.
116Since being charged, you have suffered with depression and anxiety symptoms; you experience neurovegetative disturbances including disturbed sleep where you wake frequently, have night sweats, and have nightmares which make it difficult for you to fall asleep again. You also reported increased anxiety and hypervigilance, worrying for your safety as you fear the victims or their friends or family may come after you for revenge. You indicated one of the victims’ fathers followed you on one occasion, driving dangerously close to the rear of your car with his headlights on high beam.
117You described constant anxiety and experiencing tremors, ruminating over your offending and the outcome of your sentencing, and how this will impact your family. Your appetite and concentration fluctuate, and your energy and motivation have deteriorated, explaining you only remained motivated at work as it was an escape and distraction. You have withdrawn from other usual activities you find enjoyable, including online gaming, stating you felt you were betraying your online friendship group by not disclosing the current charges.
118You described your psychosocial circumstances preceding and during the offending period and the effect this had on your mental state.
119In relation to the first victim, Ms Wagner, you told Ms Ferrari ‘curiosity’ got the better of you. You explained all of your friends were pairing off and had partners and you had never been in a relationship at that point. You admitted to ‘peeping’ up her skirt and admitted this behaviour was inappropriate. At the time, you did not consider your actions to be immoral or illegal.
120In relation to the other offending against Ms Barrett and Ms Day, you told Ms Ferrari you were under significant work stress during this period, working long hours at ANCA and at that time trying to maintain your employment and prove your performance was of a high standard. You stated you had little time for yourself and your own interests during this time, recalling you were either at work or running your sons to various sports and extracurricular activities.
121You could not explain your offending and did not attempt to excuse or justify your behaviour. You described feeling incredibly ashamed, guilty, remorseful and repulsed by your actions. Ms Ferrari concluded from your assertions you could empathise with the detrimental impact your offending would have had on the victims, particularly given the critical period of their development the abuse occurred in.
122You reflected you do not understand why you committed the offences and did not appear to consider the wrongfulness during the period of offending. You told Ms Ferrari you only came to the realisation of what you were doing once your behaviour reached ‘an extreme point’, referring to putting your penis in Ms Day’s mouth, which occurred around the same period you digitally penetrated Ms Barrett.
123Ms Ferrari asked you whether you felt any attraction towards the victims or other underage children. You said you were unsure if at the time you were attracted to them, but you certainly have never been attracted to any young girls since.
124You denied any viewing or use of pornography other than consensual adult pornography.
125You said you do not believe you would have persisted with the abuse or proceeded to the extent you did if the victims had resisted your behaviour. When Ms Ferrari asked you to elaborate regarding this, you clarified by saying you did not mean this as an excuse, but rather it would have shocked you into realising the gravity of your actions.
126Ms Ferrari talked to you about consent and minors. You appeared to be able to understand this concept and ultimately conceded your actions were abhorrent and disgraceful, and incredibly damaging not only to the victims and their families, but now to your own wife and children.
127Ms Ferrari is of the opinion you displayed no evidence of perceptual disturbances or other psychotic phenomena. There was no overt evidence of memory issues or cognitive deficits warranting further cognitive assessment. You displayed good insight and judgment, though you struggled to identify any factors which contributed to the offending. Ms Ferrari noted, however, you did not seek to justify your behaviour.
128Ms Ferrari was of the opinion you meet the diagnoses in accordance with the DSM-5[42] for paedophilic disorder (non-exclusive type, sexually attracted to females) and adjustment disorder with mixed anxiety and depression. There was no evidence you have an entrenched personality disorder.
[42] American Psychiatric Association (2013). Diagnostic Statistical Manual of Mental Disorders (5th ed.) Arlington, VA: Author.
129Ms Ferrari advised the course of paedophilic disorder can fluctuate with or without treatment, and may subside with age, particularly if there is subjective distress (guilt, shame, isolation) or psychosocial impairment as is evident in your case. Accordingly, in her opinion you no longer meet the criteria for paedophilic disorder.
130Since being charged with these offences, you have developed symptoms of depression and anxiety which are consistent with an adjustment disorder. This is impacting your mental health and functioning. As your counsel fairly conceded, no doubt this is reactive to your present circumstances.[43]
[43] See plea hearing transcript, dated 20 September 2021, (‘T’) pp 34.21–35.22.
131Ms Ferrari was of the overall opinion, while there is no possible justification for your behaviour and the commission of these crimes, there is evidence of you being under heightened employment stress at the time of the offending which contributed to externalised behaviour in lieu of adaptive coping mechanisms. It is unclear whether there were any dynamics within your marriage at the time of the offending which also contributed to you seeking escape and distraction through inappropriate avenues. Ms Ferrari noted you did not actively seek out or procure victims, rather your offending conduct was opportunistic.
132Your counsel agreed the principles stated in R v Verdins[44] as explained in Brown v The Queen[45] are not engaged in your case.[46]
[44] (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA).
[45] (2020) 62 VR 491.
[46] T 34.11–35.22.
Medical History
133Regarding your medical history, you suffer from high blood pressure for which you are medicated on Coversyl 0.5mg, and you have Type II diabetes. You suffer from pins and needles, and also reported having a back injury approximately halfway through your employment with ANCA which caused you chronic pain for five years. This required physiotherapy and specialist review which eventually determined your pelvis, and first vertebrae were pinched together. This has now been resolved.
134You have been in two motor vehicle accidents (‘MVA’) in which you sustained head injuries. The first occurred around 1986, where you lost consciousness after losing control of your car owing to an oil spill on the road. You returned to the scene, having gone home to seek help. You reported having no medical investigations at that time, but you had headaches for a period and were unable to remember parts of the accident.
135The second MVA occurred approximately 12 years ago where you where T-boned at an intersection, and again sustained head injuries but could not recall if you lost consciousness in this accident.
Alcohol and Substance Use
136Neither alcohol nor drugs played any role in the offending. You told Ms Ferrari, you began drinking at 21 years of age and you usually consume alcohol once a month, but for the past five years you have not been able to drink owing to suffering severe headaches even after consuming only one alcoholic drink.
137You noted a period whilst working for Clyde Industries you began associating with a colleague who was abusing drugs (though you were unaware of this at the time), and you began drinking daily with this acquaintance. You estimated you would drink half a bottle of spirits each day, however after a month you realised your drinking was becoming problematic and you ceased. You denied any history of illicit drug use.
Risk Factors
138Ms Ferrari assessed you for 20 sexual violence risk factors based on your self-reporting, her clinical opinion and historical documents provided to her.
139She assessed you as ‘low’ risk for 18 of the factors. You were assessed as a ‘moderate’ risk for one factor.
Relationship problems: You have been able to establish and maintain long-term, stable relationships, however the offending occurred during your marriage where you reported that there were no relationship problems. It is noted the current charges have significantly impacted your relationship with Joy and you do not believe the relationship will withstand this.
And you rated ‘high’ risk for one factor.
Sexual deviation: There appeared to be a stable or enduring pattern of sexual deviation (interest, preference, arousal or behaviour involving inappropriate persons or objects) over at least a six-month period encompassing the offending. It is noted there has not been any indication of further offending since and you strongly denied any attraction to or sexual behaviour with inappropriate individuals since.
140Overall, Ms Ferrari was of the view you are at a low risk of future sexual reoffending according to the SVR-20 V2.
141Ms Ferrari was of the opinion protective factors which mitigate your risk profile are the absence of any major mental illness, absence of substance abuse, a stable employment history, the ability to maintain long-term relationships in the past, you do not appear to display any attitudes condoning sexual offending and there is no evidence of a criminal orientation. Importantly, you have no history of violent or other sexual offences.
142Ms Ferrari’s opinion was that with targeted psychological treatment to understand and more effectively manage your identified risk factors, your future risk of sexual recidivism would be further reduced.
Mitigating Circumstances
143You pleaded guilty to the indecent assault involving Ms Wagner (the first indictment charge) on 21 January 2020, following a number of committal mentions. I accept this plea is entered by you at the earliest forensically reasonable time.[47] The prosecutor accepted this plea was entered ‘at a relatively early stage of the proceedings’.
[47] See Atholwood v The Queen (1999) 109 A Crim 465, 468 (Ipp J); Cameron v The Queen (2002) 209 CLR 339, 345–6 [20]–[22] (Gaudron, Gummow and Callinan JJ).
144Apparently, all other charges (the second indictment charges) proceeded in the Magistrates’ Court by way of straight hand up brief, thereby sparing the victims and their families the trauma of a contested committal hearing. Your counsel told me you faced thirty-three charges at the committal in respect of the offending conduct encompassed in the second indictment.
145Eventually a trial date was fixed in this Court for 3 May 2021. Owing to the COVID-19 pandemic, that trial date was vacated, and another trial date was fixed for 20 October 2021. It is likely this trial date also would have been vacated and a new trial date in 2022 set.
146The matter proceeded before me as a case conference on 31 August 2021 where all live issues were ventilated. The case conference was adjourned to 3 September 2021 for further negotiations, mainly regarding the number of occasions of offending conduct alleged to comprise each of the course of conduct charges on the then draft second indictment. You pleaded guilty to the first and second indictments before me on 3 September 2021. The matter was then adjourned for a plea hearing on 20 September 2021.
147While these are relatively late pleas, I accept they have significant utilitarian benefit, which is of even greater than usual importance given the effects of the COVID-19 pandemic.[48] Moreover, any trial or trials would have been reasonably lengthy, and you have spared the victims of your crimes and their families the further trauma of having to give evidence and be cross-examined. The prosecutor fairly accepted this was so.
[48] See Worboyes v The Queen (2021) 96 MVR 344, 356–7 [34]–[39], [2021] VSCA 169 (Priest, Kaye and T Forrest JJA); Chenhall v The Queen [2021] VSCA 175 [29]–[30], [33]–[36] (Priest, Kaye and T Forrest JJA).
148The pleas also indicate your acceptance of responsibility for your offending conduct and a willingness to facilitate the course of justice.
149The prosecutor accepted you are ‘entitled to a significant discount in sentence’ on account of your pleas of guilty. I agree with this submission.
150While I accept you are undoubtedly regretful for the situation in which you find yourself and the effect this has had on you, there is insufficient evidence before me to make a finding in your favour you demonstrate true contrition and remorse for your offending conduct, beyond what is evident from the pleas themselves. Assertions of ‘real contrition’ and you being ‘remorseful’ by your counsel from the Bar table and your self-serving statements made to Ms Ferrari at the time of her assessment are, in my opinion, insufficient for you to discharge the burden on you in this regard.[49] I note you made emphatic denials to committing all offences in your record of interview.
[49] See eg Barbaro v The Queen (2012) 226 A Crim R 354, 364–365 [32]–[38] ((Maxwell P, Harper JA and T Forrest AJA).
151You have no prior convictions or findings of guilt and no subsequent convictions or outstanding charges. I accept your offending conduct is an aberration of otherwise good character and I take this into account in your favour.[50] As the Court of Appeal observed in Williams (a pseudonym) v The Queen,[51] whilst it might be accepted ‘as a general proposition’
… that previous good character is afforded less weight in the case of sexual offending against children than in cases involving other kinds of offending … it is not the case that previous good character is to be given no, or wholly insignificant, weight. … [It] remains a mitigating factor that the sentencing judge is bound to consider.[52]
[50] See Williams (a pseudonym) v The Queen [2021] VSCA 35 [18] (priest and Kyrou JJA).
[51] [2021] VSCA 35 (Williams).
[52] Williams [18] (Priest and Kyrou JJA) citing SD v The Queen (2013) 39 VR 487, 494 [30] (Ashley, Redlich and Priest JJA) (‘SD’) and Ryan v The Queen (2001) 206 CLR 267, 278 [33]–[34] (McHugh J).
152I also must be careful to not reduce the weight I give to this factor, while treating your breach of trust as an aggravating circumstance of your offending conduct.[53]
[53] See SD [31]; Torrefranca v The Queen [2021] VSCA 157 [33]–[41] (McLeish and Osborn JJA).
153You are a mature aged offender, with a stable family situation and a good employment history, who is facing a sentence of imprisonment for the first time in your life.
154The effect of delay is a mitigating circumstance in your case. It is now well over two years since you were interviewed in relation to the present offences on 7 February 2019 and charged on 14 June 2019. Your offending against Ms Wagner occurred some 35 years ago, and that against Ms Barrett and Ms Day concluded some 15 years and 14 years ago respectively.
155While, as your counsel concedes, less weight is given to delay in relation to sexual offence against children,[54] the delay between now and the detection of your crimes and you being interviewed and charged is of some real significance in your case.
[54] See R v Nikodjevic [2004] VSCA 222 [21]–[22] (Ormiston JA, Callaway and Vincent JJA agreeing); DPP v Bales [2015] VSCA 261 [29] (Osborn, Kaye and McLeish JJA); Thornton v The Queen [2021] VSCA 39 [32]–[34] (Kaye JA).
156As the Victorian Court of Appeal observed in Rodriguez v DPP (Cth):[55]
Delay is normally relevant in two ways. First, it is relevant to rehabilitation that has occurred during the delay and the effect that has in turn on specific deterrence. Secondly, delay is relevant in the sense that the anxiety and uncertainty of having the prospect of a sentence hanging over one’s head during the period of delay is akin to punishment in itself.[56]
[55] (2013) 40 VR 436.
[56] Ibid 445–6 [36] (Warren CJ and Redlich JA) (citations omitted).
157So far as your rehabilitation during the period of delay is concerned, it is noteworthy you have committed no further offences since the present offending concluded in April 2007. In the intervening period, you have been a committed family man and maintained consistent employment. This augers well for your prosects of rehabilitation, which I consider are excellent.
158So far as delay akin to punishment is concerned, since you were charged in relation to these offences you have had the very real prospect of a lengthy sentence of imprisonment hanging over your head. Undoubtedly, this would have caused you stress and anxiety. I take the punitive effects of delay into account in your favour.
159The effects of the COVID-19 pandemic are relevant to sentencing because:
(a) An offender is a higher risk of contracting COVID–19 if they are incarcerated (presuming an outbreak in custody).[57]
[57] The Queen v Madex [2020] VSC 145 [52].
(b) The inherent utilitarian value of a guilty plea is greater during the pandemic.[58]
(c) The pandemic is causing additional stress and concern for those incarcerated and their families, as it is for every member of the community.[59]
(d) The pandemic can impact on visits, work and educational opportunities, depending on the number of cases of COVID-19 in the community at any given time.
[58] DPP v Bourke [2020] VSC 130 [32].
[59] Brown v The Queen [2020] VSCA 60 [48].
160I have had regard to a bundle of certificates tendered by your counsel at the plea hearing.[60] These comprise an Indenture of Apprenticeship, dated 20 May 1978 and evidence of numerous trade qualifications you have obtained over the period 1982 to 2015.
[60] Ex D3.
Application of Sentencing Principles
161I have had regard to recent current sentencing practice for the offences before me as informed by the decisions of the High Court of Australia in R v Kilic[61] and DPP (Vic) v Dalgliesh (a pseudonym)[62] and the Victorian Court of Appeal in DPP v Zhuang.[63]
[61] (2016) 259 CLR 256, 266–8 [21]–[25] (Bell, Gageler, Keane, Nettle and Gordon JJ).
[62] (2017) 262 CLR 428 (Kiefel CJ, Bell, Gageler, Keane and Gordon JJ).
[63] (2015) 250 A Crim R 282, 292 [30]–[31] (Redlich, Priest and Beach JJA). See also Williams (a pseudonym) v The Queen [2021] VSCA 35 [21]–[[25] (Priest and Kyrou JJA) (‘Williams’).
162As the prosecutor correctly submitted, the correct approach to sentencing for historical sexual offences was laid down by the Court of Appeal in Stalio v The Queen.[64] In Mush v The Queen,[65] that Court summarised the effect of Stalio regarding the application of current sentencing practice to ‘offending [which] took place a number of decades previously’ as follows:
[107] In Stalio, the Court identified two relevant propositions in respect of that question. First, the phrase ‘current sentencing practices’, in s 5(2) of the Sentencing Act, relates to present sentencing practices (and not practices that were current at the time of the offending). Secondly, however, the concept of equal justice requires that regard be had to sentencing practices at the time of the offence, if those practices can be demonstrated to have required the imposition of a materially lesser sentence for like offences.
[108] In respect of the first proposition, it is recognised that the reference to ‘current sentencing practices’ in s 5(2)(b) of the Sentencing Act extends beyond the actual sentencing result in a particular case, but also encompasses matters such as the weight and effect that is given to particular sentencing considerations in the exercise of the sentencing discretion. Thus, for example, the increasing prevalence of a particular form of offence might at the time of sentence have the effect that sentencing practices have altered, because of the need for greater emphasis to be given to the principle of general deterrence. On the other hand, increasing awareness, in recent decades, of the effects of mental impairment, and of the longstanding consequences of a dysfunctional and traumatic upbringing of a particular offender, have led to greater weight being given to those factors as mitigating circumstances.
[109] In respect of the second proposition stated in Stalio, the Court in Bradley identified a qualification to the application of the principle of equal justice in cases in which the offending occurred decades before the offender is sentenced. The Court considered that, where it was the offender’s own conduct which made it impossible for him or her to be sentenced contemporaneously with the offending, the offender may not be entitled to seek to be treated as if his or her criminal responsibility had been established at the time of the offending.
[110] Each of the above principles is relevant in considering the previous sentences to which we have been referred. We also observe, as the High Court recently emphasised in Dalgliesh, that sentencing practices are only one of a number of factors which need to be taken into account in the exercise of the sentencing discretion. In identifying the relevant sentencing practice, it is important to bear in mind that previous sentencing decisions do not constitute precedents for the sentence that is to be passed in the instant case. In each case, the exercise of the sentencing discretion is necessarily the result of the balance — or synthesis — of a number of different, and frequently conflicting, factors which can vary significantly between individual cases.[66]
[64] (2012) 46 VR 426.
[65] [2019] VSCA 307 [107]–[110] (Maxwell P and Kaye JA).
[66] Ibid [107]–[110] (Maxwell P and Kaye JJA) (citations omitted. See also Bradley v The Queen [2017] VSCA 69 [123]–[124] (Maxwell P, Weinberg and Tate JJA).
163In relation to the charge of sexual penetration of a child under 16, the prosecutor referred me to a tabular overview of Court of Appeal decisions from 2006 to the present (where the child is aged under 10 years and where the child is over the age of 10 years) at Chapter 3.4.2.1.1 of the online Judicial College of Victoria (‘JCV’) Sentencing Manual – Case Summaries. The prosecutor also referred me to the very recent decision of the Court of Appeal in Williams (a Pseudonym) v The Queen[67] in relation to this particular offence.
[67] [2021] VSCA 35.
164In relation to the charge of indecent act with a child under 16, the prosecutor referred me to a tabular overview of Court of Appeal decisions from 2006 to the present at Chapter 3.4.3.1.1 of the online JCV Sentencing Manual – Case Summaries.
165Finally, in relation to the charge of indecent assault, the prosecutor correctly observed care must be taken with reference to previous cases as the maximum penalty applicable in this case is five years’ imprisonment whereas the maximum penalty has since been increased to 10 years imprisonment.[68]
[68] In 1992.
166I have also paid cautious attention to SACStat, the Sentencing Advisory Council Statistics, from 1 July 2015 to 30 June 2020 for the relevant offences.
167It is always difficult to gauge more than a general yardstick from so-called ‘comparable cases’, given the wide range of offending conduct that can constitute the offences before me and the myriad of personal circumstances pertaining to individual offenders.
168The standard sentencing regime does not apply in this case. Charge 1 on the second indictment is a ‘category 1’ offence under the Sentencing Act (1991).[69] Accordingly, a court must impose a mandatory sentence for imprisonment to be immediately served.[70] There was never any doubt all charges before me require sentences of imprisonment with a non-parole period fixed. You counsel accepted this was so.
[69] See SA s 3(1) definition of ‘category 1’ offence at para (l)(iii).
[70] See SA s 5(2G).
169Since you will be sentenced to a term of imprisonment on Charge 1 on the first indictment and on Charge 1 on the second indictment, you fall to be sentenced as a serious sexual offender on Charges 2 to 6 inclusive on the second indictment.[71] On those charges, s 6D of the Sentencing Act elevates protection of the community as the principal purpose of sentencing. Moreover, there is a presumption of cumulation on those charges by virtue of the operation of s 6E.
[71] See SA Part 2A and the definition of ‘serious sexual offender’ in s 6B(2) and Schedule 1, cll 1(c)(i), 1(dab)(ii) and 1(dac).
170Whilst the principle of totality is not displaced in relation to the operation of the statutory presumption of cumulation in respect of Charges 2 to 6, I must be mindful to give effect to the statutory regime as was noted by the Court of Appeal in Gordon v The Queen.[72] As Redlich JA observed:
This tension between the policy underlying s 6E and the principle of totality is difficult to reconcile. Authority has thus far provided no clear guidance as to the circumstances in which the statutory presumption of full cumulation under s 6E should override the principle of totality. However, it may at least be said that as the objective gravity of the total offending increases, so will the degree of cumulation which is ordered, thereby producing a total effective sentence which will more closely correspond with both the legislative policy underlying s 6E and the principle of totality.[73]
[72] [2013] VSCA 343 [74] (Redlich JA)
[73] Ibid.
171The prosecutor submitted ‘the principle of totality is an important sentencing consideration’ in this case, but ‘cumulation is warranted’ in respect of all charges on the second indictment and in respect of the charge on the first indictment. I accept this submission.
172The prosecutor informed me the Director does not seek the imposition of a disproportionate sentence under s 6D(b) of the Sentencing Act in this case.
173Charge 1 on the first indictment is a class 2 offence under the Sex Offenders Registration Act 2004 (‘SORA’)[74] and is a registrable offence. Charges 1, 4 and 6 on the second indictment are class 1 offences under SORA[75] and are registrable offences and Charges 2, 3 and 5 are class 2 offences under SORA[76] and are a registrable offences. The reporting period is calculated by reference to all offences charged on both indictments. Accordingly, the reporting period is for life.
[74] Sex Offenders Registration Act2004 (‘SORA’) Schedule 2 item 26A.
[75] SORA Schedule 1 item 1.
[76] SORA Schedule 2 item 26A.
174The basic purposes for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of factors, such as the seriousness of the offences, your culpability for them, the impact on your victims and your personal circumstances.
175I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, so far as is possible, you are rehabilitated and reintegrated into society.
176General deterrence and denunciation of your conduct must be of primary importance in sentencing you for these offences. I am of the opinion, specific deterrence and protection of the community need be given little weight, except in so far as you fall to be sentenced as a serious sexual offender, where protection of the community is the principal purpose for which the relevant sentences are imposed.[77] I assess your prospects of rehabilitation as excellent.
[77] See SA s 6D(a).
177I consider sentences of imprisonment to be immediately served with a non-parole period are the only sentences on all charges appropriate to achieve the purposes for which the sentences are imposed.[78] Your counsel accepted this is so.
[78] See SA s 5(4).
178I have accepted you counsel’s submission and imposed a somewhat shorter non-parole period than I would have imposed in a different case, particularly on account of your excellent prospects of rehabilitation, the need to facilitate your eventual reintegration into society, and the increased custodial burden arising by reason of the COVID-19 pandemic, among other more general considerations.[79] The prosecutor fairly accepted it was open for me to do this in your case.
[79] See R v VZ (1998) 7 VR 693, 694 [3] (Phillips CJ), 697-8 [12]–[15], 698 [18] (Callaway JA), 700 [22] (Batt JA) and recently, Wyka v The Queen [2020] VSCA 104 [104]–[106] (Croucher AJA, Niall JA agreeing).
Stand up Mr Hendley
On Charge 1 on Indictment No. K11509692.1 (the first indictment) (indecent assault of Natalie Wagner) you are convicted and sentenced to imprisonment for two years.
On Charge 1 on Indictment No. K11509692.2 (the second indictment) (sexual penetration of a child under 16, namely Eloise Barrett, when she was under the age of 10 years) you are convicted and sentenced to imprisonment for six years.
On Charge 2 on the second indictment (indecent act with or in the presence of a child under 16 years, namely Eloise Barrett) you are convicted and sentenced to imprisonment for three years.
On Charge 3 on the second indictment (indecent act with or in the presence of a child under 16 years, namely Celia Day) you are convicted and sentenced to imprisonment for two years.
On Charge 4 on the second indictment (sexual penetration of a child under 16, namely Celia Day) you are convicted and sentenced to imprisonment for four years.
On Charge 5 on the second indictment (indecent act with or in the presence of a child under 16 years, namely Celia Day) you are convicted and sentenced to imprisonment for three years.
On Charge 6 on the second indictment (sexual penetration of a child under 16, namely Celia Day) you are convicted and sentenced to imprisonment for four years.
The sentence of six years’ imprisonment on Charge 1 on the second indictment will be the base sentence.
I direct one year of the sentence imposed on Charge 1 on the first indictment, nine months of the sentence imposed on Charge 2 on the second indictment, six months of the sentence imposed on Charge 3 on the second indictment, two years of the sentence imposed on Charge 4 on the second indictment, nine months of the sentence imposed on Charge 5 on the second indictment and two years of the sentence imposed on Charge 6 on the second indictment be served cumulatively on the sentence imposed on Charge 1 on the second indictment and on each other. This makes a total effective sentence of 13 years’ imprisonment.
I fix the period of eight years during which you are not eligible to be released on parole.
I declare pre-sentence detention in your case is 46 days, not including this day, and I direct that declaration be entered into the records of the Court.
I direct the fact I have sentenced you as a serious sexual offender on Charges 2, 3, 4, 5 and 6 on the second indictment be entered in the records of the Court.
Pursuant to the provisions of the Sex Offenders Registration Act 2004 I order you comply with the reporting provisions of that Act for life commencing today.
Pursuant to s 6AAA of the Sentencing Act 1991, I state the sentence I would have imposed on you but for your pleas of guilty would have been a total effective sentence of 16 years’ imprisonment with a non-parole period of 12 years.
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