Director of Public Prosecutions v Holleman

IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

CR-19-00056 & CR-19-02340
Indictment No: J12108328 & J12108328A.2

DIRECTOR OF PUBLIC PROSECUTIONS

SHANE HOLLEMAN[1]

[1] To ensure no identification of a victim of a sexual offence, these reasons for sentence have been anonymised by the adoption of a pseudonym in place of the name of the victims. A schedule of substitutions will be retained by the Court for future reference.

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JUDGE:	HER HONOUR JUDGE CARLIN
WHERE HELD:	Melbourne
DATE OF HEARING:	9 July 2020
DATE OF SENTENCE:	31 July 2020
CASE MAY BE CITED AS:	DPP v Holleman
MEDIUM NEUTRAL CITATION:	[2020] VCC 1158

REASONS FOR SENTENCE
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Subject: Criminal Law

Catchwords: Five charges of indecent assault of a male; offending occurred between 1969 and 1977; three victims; offender operated youth group out of hall owned by Church; no prior criminal history; high moral culpability, demonstrated rehabilitation; offender charged following referral from Royal Commission into Institutional Responses to Child Sexual Abuse
Legislation cited: Sex Offenders Registration Act 2004 (Vic); Sentencing Act 1991 (Vic); Crimes Act 1958 (Vic); Crimes (Amendment) Act 1967 (Vic).
Cases cited: Bromley v the Queen [2018] VSCA 329; Director of Public Prosecutions v Polat (a pseudonym) [2020] VSCA 174; Stalio v the Queen (2012) 46 VR 426; Director of Public Prosecutions v Morgan [2014] VSCA 303; R v Pridgeon [2006] VSCA 250; Director of Public Prosecutionsv Bromley [2018] VSCA 329; Morris v The Queen (2016) VSCA 331 and Director of Public Prosecutionsv Bales [2015] VSCA 261; Clarkson v The Queen (2011) 32 VR 361; Barbaro & Zirilli v The Queen [2012] VSCA 288; R v Whyte (2004) 7 VR 397; Arthars and Plater v The Queen [2013] VSCA 258; Director of Public Prosecutionsv Toomey [2006] VSCA 90.
Sentence: Total effective sentence of 37 months’ imprisonment with a non parole period of 20 months; sex offender registration for life.

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Devlin	Office of Public Prosecutions
For the Accused	Mr P. Tiwana	Dribbin and Brown Criminal Lawyers

HER HONOUR:

Introduction

Shane Holleman, between 1969 and 1977, you sexually assaulted three young boys who attended a youth group that you operated. You took advantage of their youth and naivety, to engage them in acts of masturbation and oral penetration for your pleasure. At the time, you were between 18 and 26 years old. They were between eight and 13 years old and lacked the understanding or wherewithal to resist your advances.
Although your victims told different people at different times what you had done to them, including two of them telling the police, you were not actually charged until the Royal Commission into Institutional Responses to Child Sexual Abuse made a referral to police in November 2017.
In this court, you pleaded guilty to five charges of indecent assault on a male contrary to s.68(3A) of the Crimes Act 1958 as amended by the Crimes (Amendment) Act 1967. Three of those five charges were representative, meaning they represented other instances of the same activity.
Your counsel, Mr Tiwana, submitted that a wholly or partially suspended sentence was within range and appropriate in your case. Such a sentence, which has since been abolished, would only be possible if the total sentence imposed did not exceed three years.The prosecutor, Mr Devlin, submitted that your offending warrants the imposition of a head sentence and non-parole period.
A plea on your behalf was conducted before me on 9 July 2020 and it now falls to me to sentence you for your conduct. In arriving at an appropriate sentence, I am required by law to have regard to a number of factors which are sometimes overlapping and sometimes contradictory in nature.[2] Some tend towards leniency and some point the other way. No one factor automatically prevails over any other. Rather, I must have regard to them all and give each one the weight it deserves in order to arrive at a just sentence.
[2] Sentencing Act 1991 (Vic) s 5 (2).
Circumstances of offending
Between 1968 and 1985, you and a friend ran a youth group out of the hall of St Margaret’s Presbyterian Church in Balaclava. At the time, you were a member of that church and also lived opposite it. You rented the hall from the church to run the youth group and the children were charged a small fee to cover the rental. Initially, the youth group was known as the Balaclava Boys’ Club and only met on Friday nights for games and activities. Over the years, the youth group expanded to include girls and to meet more frequently.
The following is the agreed factual basis upon which I should sentence you. It is drawn from two revised Summary of Prosecution Openings tendered and marked as Exhibits A and B on the plea.
CLIVE HOLLIS[3]
[3] A pseudonym.
Clive Hollis attended your youth group between 1969 and 1974, when he was between eight and 13. He walked there on a Friday night with others. On occasion, he visited your house and on two to three occasions you drove him home after meetings. He knew you as a youth group leader.
Charges 1 and 2 both occurred on an occasion between 2 March 1969 and 29 July 1974, when you drove Clive and other children home and Clive was in the front seat. After dropping the other children off you parked in a street in East St Kilda and fondled Clive’s leg and groin and then kissed him on the lips. You then pulled his pants down and masturbated his penis before sucking it. Charge 1 on Indictment No.J12108328, which I will call the first indictment, relates to the act of masturbating Clive’s penis. Charge 2 on that indictment relates to the act of sucking his penis and is representative of two further acts of oral sex. As you were sucking his penis, Clive had an erection and you had your penis exposed. After a while, you stopped sucking his penis and masturbated yourself. You then told Clive to suck your penis. He tried but could not manage to do it and told you he did not like it. You said it was alright and then resumed sucking his penis until he ejaculated. This is the first act of oral sex represented by Charge 2. You then masturbated yourself to ejaculation.
You told Clive that if he enjoyed what had happened, he should ask to be dropped off last, whenever you drove him home.
Sometime after that occasion, you did drive Clive and others home again and Clive did ask to be dropped off last. You parked in the same street in East St Kilda and you again performed oral sex on Clive until he ejaculated. This is the second incident of oral sex represented by Charge 2.
Clive first disclosed your offending to his girlfriend when he was about 19 years old.
RICHARD O’DONNELL[4]
[4] A pseudonym.
Richard O’Donnell attended your youth group between 6 September 1975 and 5 September 1977 when he was eight and nine years old. On one occasion, after playing soccer and after dark you took Richard over the road to your house. You removed your clothes and his, sat him on your lap and masturbated him. This conduct is Charge 3 on the first indictment, which is representative of two other instances of masturbation. You told Richard to get stiff but he was too young and could not achieve an erection. You masturbated yourself at the same time. After a while you both got dressed and you gave him a bag of ‘teeth’ lollies. You then returned to the hall.
About one or two weeks later, you again took Richard to your house after dark. You took him to the same bedroom as before and locked the door. You made him take off his clothes below the waist. When you heard a noise you told him to get under the bed, which he did. Soon after, you fondled his penis. This act is represented by Charge 3. After a while, Richard got dressed and you returned to the hall.
Sometime after that you took fifteen boys on a camping trip. You put Richard in the same bed as you, and possibly other men, and during the night you fondled his penis. This act is also represented by Charge 3.
Richard O’Donnell first disclosed what had happened in about 1987 when he was 19 or 20 years old.
JACOB FINNEY[5]
[5] A pseudonym.
Jacob Finney started attending your youth group in about February 1976 when he was 11 years old. At the time, he lived in St Kilda with his widowed mother and two younger brothers, his father having died when he was seven.
One day in March 1976 you asked Jacob’s mother if Jacob could come and help you at the hall. You collected Jacob and drove him to the hall late in the afternoon. It was warm and you were both wearing shorts. You asked him to move some equipment so that you could sweep the floor. While he was doing that you approached him from behind and asked him to have a special talk. You said the friendship had to be kept secret and the secret was very special.
You took Jacob’s hand and put it down your pants. Your penis was erect and moist and Jacob noticed a stain on your shorts. Whilst you lay down on mats you made Jacob masturbate you until you ejaculated. This conduct comprises Charge 1 on Indictment No. J12108328A.2, which I will call the second indictment. You then took Jacob for ice cream and dropped him home reminding him of your secret.
On a day between 23 April and 16 May 1976 you again asked Jacob’s mother if Jacob could help clean the hall. When you had finished cleaning you drove to a car park near St Kilda marina. You moved Jacob closer to you along the bench seat, put his hand on your penis and made him masturbate you. You are not charged for this act, which is put as context for what followed. You then made Jacob suck your penis for some time before driving him home. This act of oral sex is Charge 2 on the second Indictment and represents one other incident of oral sex which also occurred in your car in the same timeframe. On that other occasion, you dropped others off near a railway bridge on the Nepean Highway and then parked with Jacob on a nearby service road and made him suck your penis.
Jacob told his mother at the time that you were making him do things with his penis, but she was dismissive and did not believe him. When he was about fifteen Jacob told a friend he was molested by you and in 2008 he told his sister in law.
History of the investigation and proceedings
Richard O’Donnell made a statement to police in 1995. You were interviewed that same year but denied offending and no charges were laid. You claim you were not informed of the outcome of that investigation.
On 22 January 2009 you were interviewed in relation to Jacob Finney who must have reported his allegations to police about that time. You admitted running the youth club and living opposite but said you had never heard of Jacob Finney. You denied that any sexual activity occurred with Jacob or indeed ‘with any youth’. Once again police did not lay any charges.
In 2014 Richard O’Donnell requested police reactivate their investigation. Police erroneously believed that the matter had somehow already been disposed of at court and did not do so.
On 8 November 2017 the Royal Commission into Institutional Responses to Child Sexual Abuse referred Clive Hollis’ matter to police for investigation. On 28 February 2018 Clive Hollis met you in person and covertly recorded his conversation with you. When he outlined what you had done to him, you told him that you could not remember, but did not question what he said and apologised to him.
On 19 March 2018, you were arrested and interviewed in relation to Clive Hollis. You denied all allegations.
Police then reopened their investigations involving Richard O’Donnell and Jacob Finney and on 8 August 2018 you were charged in relation to all three complainants. In relation to Clive Hollis the matter resolved to a plea of guilty on 26 October 2018 post committal mention. The charges relating to Richard O’Donnell and Jacob Finney proceeded to a committal hearing on 14 and 15 January 2019 during which Richard O’Donnell, Jacob Finney and other witnesses were cross-examined. At the end of the hearing, you were committed to this court in relation to all complainants.
The matter as it related to Richard O’Donnell resolved on 1 February 2019 and on 19 February 2019, you were arraigned and pleaded guilty on the first indictment to the charges involving Clive Hollis and Richard O’Donnell. At that stage, the matter of Jacob Finney was proceeding to trial, albeit the allegations were more extensive than the charges to which you have pleaded guilty.
In December 2019, the Jacob Finney matter also resolved and on 13 December 2019 you were arraigned and pleaded guilty to the charges on the second indictment.
Objective Gravity of your offending and moral culpability
Viewed globally your offending was very serious and your moral culpability high. You repeatedly sexually abused three young boys who had been entrusted to your care by their parents. Whilst the number of incidents is relatively confined, your offending spanned at least two and up to eight years. Further, whilst it is possible that you were only 18 when you offended against Clive Hollis, you were between 24 and 26 years old when you offended against Richard O’Donnell and Jacob Finney. You had ample opportunity over the two or more years of your offending to reflect on your conduct and desist, but you did not, instead making a deliberate decision to offend again. This repeated offending not only increases your moral culpability for your later crimes, it tends to undermine any attribution of responsibility for your earlier crimes to immaturity. [6]
[6] Director of Public Prosecutions v Polat (a pseudonym) [2020] VSCA 174 at [24].
You told Ms Matthews, psychologist, that you had ‘no idea’ of the potential impacts upon your victims. Even if that be the case, you did not stop to think. You were intent on satisfying your own sexual desires regardless of the consequences.
Accepting your instructions to Mr Tiwana that other than renting the hall your youth club was not affiliated with the church, the fact it operated out of a church hall was not without significance. It is unrealistic to think the club did not derive some status or respectability from the Church in whose shadow it operated. At the very least a parent of any child attending would have been entitled to assume that the church approved of you renting the hall to run the club. In sexually abusing boys who attended, you not only breached the trust of the boys you breached the trust of their parents and you breached the trust of your own Church.
Individually, the charges are also serious. In each case, you orchestrated scenarios in which you could be alone with your young victims either in the car, in your house, or in the hall. On two occasions you gave your victims treats afterwards. Considering the breadth of activity covered by the offence of indecent assault at that time, oral sexual penetration and masturbation, especially masturbation to ejaculation must be regarded as serious examples of the offence. Further, three of the five charges represent other instances, albeit only one to two other instances, of similar offending. Whilst I am not sentencing you for the represented conduct it allows me to view the charged acts in their proper context and not as isolated instances.
There is nothing in your personal circumstances, which I will shortly outline, which operates to reduce your high moral culpability.
Current Sentencing Practices and equality of justice
One, and one only, of the matters to which I must have regard in arriving at an appropriate sentence for you is current sentencing practices. The purpose is to promote consistency of approach in sentencing, particularly, the application of relevant sentencing principles. Sentencing practices in this context is not confined to the range of sentences imposed in other similar cases. It extends to actual practices concerned with sentencing.[7]
[7] Stalio v the Queen (2012) 46 VR 426 at [18] and [37].
In the case of historical offences, such as yours, the sentencing practices to which I must have regard are those sentencing practices which exist today, at the time of sentence. This means, for example, that I am entitled to have regard to the evolution in knowledge of the devastating impact of offending such as yours as well as current community attitudes. That said, equality of justice requires that I also consider sentencing practices existing at the time of your offending, if known, to avoid you receiving a substantially higher sentence simply because of the effluxion of time.[8]
[8] Ibid at [9], [53] and [54] and Bromley v the Queen [2018] VSCA 329 at [50] ff.
Whilst neither counsel identified any sentencing practices existing at the time of your offending, they did refer me to other cases where sentences have been imposed for historical sexual offences.[9] I have had regard to those and other cases. They are informative, but of course, are not precedents and do not set the outer parameters of the appropriate sentence for you. Further, given the vast array of different circumstances of both offending and offender, particularly in historical matters, none of them are truly comparable.
[9] Director of Public Prosecutions v Morgan [2014] VSCA 303; R v Pridgeon [2006] VSCA 250; Director of Public Prosecutionsv Bromley [2018] VSCA 329; Morris v The Queen (2016) VSCA 331 and Director of Public Prosecutionsv Bales [2015] VSCA 261.
Of most significance in sentencing you is fact that the maximum penalty for all your offending is five years. I must be guided by that maximum penalty, rather than the 25 year maximum penalty which now applies for oral sexual penetration.
With that in mind, ultimately my duty is to impose a just and appropriate sentence on you in the circumstances of this case.
Impact of your offending
Your victim Clive Hollis submitted a victim impact statement in which he described how his personality changed after you sexually abused him. He said that he became serious and felt that he had a heavy heart, a feeling which still persists. As a teenager he was afraid he would not be able to maintain a relationship with girls. His confidence, self-esteem and ability to trust people, especially men have been affected in the long term. He said ‘I am angry and sad that you robbed me of my innocence and childhood’.
Although I do not have victim impact statement from your other two victims, I am satisfied you have caused them harm. There is a legal presumption that premature sexual activity causes long term and serious physical and psychological harm to children[10]. Both of those two victims were cross-examined at committal and to say the least, that presumption was not displaced. Indeed, you told Ms Matthews that upon hearing the evidence of Mr O’Donnell, you felt terrible about what you had done to his life.
[10] Clarkson v The Queen (2011) 32 VR 361.
Plea of Guilty, co-operation and remorse
You are to receive a utilitarian discount in your sentence for the fact you have pleaded guilty to all offences. In so doing, you have facilitated the course of justice and taken legal responsibility for your crimes. This is particularly important in the current environment where COVID-19 has placed the criminal justice system under considerable strain. In relation to Clive Hollis, I accept that it was an early plea of guilty and you are to get the maximum benefit for that. In relation to Richard O’Donnell and Jacob Finney you are entitled to a somewhat lesser discount as you did not enter pleas at the first opportunity, indeed they were both cross-examined extensively at committal. However, you did plead guilty promptly after committal in relation to
Richard O’Donnell and promptly to a negotiated indictment in relation to Jacob Finney.

A plea of guilty is not, of itself, proof of remorse. People can plead guilty for many reasons. Further, as the courts have made clear, true remorse is not anxiety at the prospect of being punished. It is more than simply regretting one’s conduct. True remorse involves a desire to make amends and a determination to change one’s behaviour.[11]
[11] Barbaro & Zirilli v The Queen [2012] VSCA 288 at [36].
Mr Tiwana submitted that your pleas of guilty are indicative of genuine remorse. If so, this would be an additional mitigating factor. He relied on your expressed remorse to Ms Matthews and others and significantly, upon the fact you have agreed to pay $230,000 compensation to Clive Hollis and made, or attempted to make, overtures to the other two victims.
Your preparedness to pay substantial compensation is a matter in mitigation, whatever the motivation. Moreover, in relation to Clive Hollis I am satisfied that you are in fact remorseful. Although you denied the offending when interviewed by police, your true emotions appear to be more accurately reflected in the covertly recorded meeting, when you apologised to Clive Hollis. You also pleaded guilty at a very early stage.
In relation to Richard O’Donnell and Jacob Finney, the situation is more complicated, as not only did you deny the offending when interviewed by police, you also subjected them to lengthy cross-examination, including about matters to which you have pleaded guilty. Whilst this is not an aggravating factor, it is hardly indicative of remorse. In response, Mr Tiwana, submitted that remorse may manifest at different stages of the proceedings. On balance, given the case against you in relation to those two could not be considered overwhelming, I accept that there is some remorse on your part.
The effects of delay
There has been a delay of almost 43 years between the last of your offending, and your sentencing. During that time, apart from offending once in 1978, you have married, had a family and led a blameless life. The fact of your rehabilitation during this period is a significant matter in your favour to which I shall return.
However, your counsel also submitted that you are entitled to have the effects of the delay taken into account in another way and that is, that you have had the worry of this matter hanging over your head for a long time. As I said during argument, in a sense, every offender who has committed as yet undetected offences, particularly sexual offences against children, lives with the anxiety that their crimes may one day be reported. That could hardly be considered unfair. Mr Tiwana submitted, however, that the fact you were interviewed by police in 1995 in relation to Richard O’Donnell, and 2009 in relation to Jacob Finney and yet were not charged until 2018 meant that for two and a half decades you lived with the anxiety and stress of not knowing if you would be charged.
In my view, you are not entitled to any significant discount for that delay. First, even if you were not explicitly told by the police after the interviews that you were not going to be charged, you would have gathered it with the effluxion of time. Secondly, if you were that concerned there was nothing stopping you from enquiring with the police as to the status of the investigations. Thirdly, apart from being told that it caused friction in your marriage, I have no specific evidence as to how this worry affected you. On the face of it, you appear to have got on with your life and not been hindered in any material way. Finally, you denied the offending during both interviews. There can be little doubt that your denials were instrumental in you not being charged at that time. Moreover, in the face of those denials I do not regard the delay in charging to be the fault of the police. It appears the police did make a mistake in 2014 in not re-opening their investigation in relation to Richard O’Donnell, but there is no evidence that you were even aware that they had been requested to do so.
I accept that the fact an accused has exercised his right to silence or indeed, even denied offending and proceeded to trial, does not mean the effects of delay cannot be taken into account, however any consideration of those effects has to be balanced against the public interest in not rewarding an offender for a lack of co-operation. The community would rightly be appalled if an offender could benefit from a delay to which he or she has substantially contributed, and which is likely to have negatively impacted his or her victims by denying them the opportunity of closure and some form of retribution.[12] There is even authority for the proposition that in those circumstances there should be a reduction in the credit given to an accused, for his or her rehabilitation during the period of the delay[13].
[12] Stalio v the Queen (2012) 46 VR 426 at [71] recognises the effect of delay on victims counts adversely to an offender.
[13] R v Whyte (2004) 7 VR 397 referred to, with approval, in Arthars and Plater v The Queen [2013] VSCA 258.
In your case, I take into account the fact that you lived with the possibility that you might be charged in relation to Richard O’Donnell and Jacob Finney, if not Clive Hollis, for many years, but I give it little weight.
Background and personal circumstances
Your background and personal circumstances were set out in detail in an Outline of Defence Submissions and a report of psychologist Pamela Matthews tendered on your plea and marked as Exhibits 1 and 2 respectively.
Briefly, you were born on 2 March 1951 and raised in St Kilda East along with two younger siblings. You are now 69 years old. You told Ms Matthews you had a happy childhood although at times you were exposed to family tension and conflict between your father and his father who was an alcoholic. You were not physically or sexually abused.
You completed Year 12 in 1967 and have an extensive employment history. At various times you worked as a salesperson, proof-reader at the Herald Sun, child protection worker with Community Welfare Services (the predecessor to the Department of Health and Human Services) and manager at a youth hostel. In 1985 you commenced a business importing novelty items which you ran until you sold it in 2010. You then sold similar items in local markets until you were arrested and charged for these matters in 2018. Since then you have done occasional consulting work to the buyer of your business.
In 1968, when you were about 17, you were asked to help at the Balaclava Boys’ club. You became a youth group leader and within a year you were running the club with a friend. Together you ran the club for about 15 years.
In 1978, at age 27, you were charged with making an obscene article. At that time, you were working in child protection and had taken five boys aged seven to nine on an outing to the country. You photographed them swimming naked and were charged after you put in the film for processing. This led to you being transferred from your child protection role in Community Welfare Services to a youth hostel. You were convicted and given a three month attendance centre order which is similar to the current community corrections order. You told Ms Matthews you were suicidal and began seeing a psychologist and a psychiatrist. The former gave you techniques to avoid reoffending and both, apparently, encouraged you to date age appropriate women.
As it turns out, that same year, you met your wife through the Balaclava Boys’ Club. She was a single mother of two young boys who attended the club. You married the next year and soon after had a son and a daughter together. You lived in Melbourne before moving to Trentham in 1985. You separated in 2014, but remain married and have an amicable relationship, including babysitting your two grandchildren together each week.
You attend Daylesford Presbyterian Church and Bible Study every Sunday. You have told your Minister and some Church members of these charges and your past conviction and have willingly entered into a ‘Safety Agreement’ which dictates the terms on which you are allowed to attend the Church and be involved in activities.
You are in reasonable physical health for your age, suffering some prostate problems and deteriorating eyesight and hearing. After being interviewed by police in 2018 you attempted suicide by overdosing on medication. You were hospitalised for two weeks and then placed on antidepressants, which you are still taking. You did not present as depressed when you saw Ms Mathews on 4 March this year and although she was concerned about your suicide attempt, she described you as being in reasonable mental health.
You have a strong social network consisting of your family, friends and local minister. They have supported you throughout, including at the time of your 2018 suicide attempt.
Your character and risk of reoffending
Six character references were tendered on your behalf, including from your daughter, your sister, Church minister and friends. All were aware of the charges you face but were still prepared to attest to your good character and generous and caring nature. Your daughter said of you ‘he has been the best dad I could have hoped for and I feel lucky to be as close as we are and will always be’.
Courts are normally required to assess the prospects of an offender’s rehabilitation prospectively, but here the delay has allowed for a retrospective assessment. You have not committed any other offences since your 1978 conviction. Mr Tiwana submitted, and I accept, that since then you have led a completely blameless, hardworking and family orientated life.
Ms Matthews said there was no mental health or personality functioning explanations for your past behaviour. She described your offending as both opportunistic and paedophilic in nature, however given your age and the time that has elapsed she considered your paedophilia to be in remission and you to be at very low risk of reoffending. Whilst I do not agree with the characterisation of your offending as opportunistic, I accept that you are now effectively rehabilitated and pose no risk to the community.
A matter arose during the plea as to the relevance of your prior good character, that is, prior to the offending. The prosecutor submitted that I should disregard it pursuant to s.5AA of the Sentencing Act 1991 on the ground that it was of assistance to you in the commission of the offences. I was referred to two cases in this court where the section has been interpreted by my fellow Judges. Both counsel agree that the level of satisfaction required by the section is beyond reasonable doubt. That is, I would need to be satisfied beyond reasonable doubt that your prior good character was of assistance in the commission of your offences before I could disregard it. I am not so satisfied. There simply is no evidence in that regard.
Your instructions to Mr Tiwana were that in about 1968, you were asked by a person who was running the boys club to help out. There was no formal interview or application process. Soon after you started, that person left and you continued running the club with another friend. Although those were simply instructions, not evidence, I note there is nothing to contradict your account and no other evidence that the fact you had no prior convictions or were of good character, influenced anyone or affected your access to these victims. In any event, given your age at the time of the offences, your prior good character is of little consequence in the sentencing process. Of much more significance is your character and behaviour in the last 43 years.
The burden of imprisonment
Save for Ms Matthews remaining concerned about your 2018 suicide attempt, your current physical and mental health does not suggest that prison will be an additional burden to you. That said, I accept that being incarcerated at your age is relevant. There is more chance for a decline in physical health at your age than there is for a younger person. Further, whilst the chance of you being infected with coronavirus in prison is speculative, I accept that the worry of contracting the virus at your age is an additional burden. I also take into account that any term of imprisonment during the pandemic will be harder due to the abolition of visits to prisons and the curtailment of various programs and activities.
Purposes of Sentencing
In addition to specifying matters to which I must have regard in arriving at an appropriate sentence, the Sentencing Act 1991 prescribes the purposes, indeed the only purposes, for which a sentence may be imposed. These are just punishment, deterrence, rehabilitation, denunciation, and protection of the community. I am obliged not to impose a more severe sentence than is necessary to achieve those sentencing purposes.
Imprisonment is to be imposed as a last resort but is conceded to be the only appropriate disposition in your case. That said, any term of imprisonment must not be longer than is necessary to achieve the sentencing purposes and Mr Tiwana submitted that it could be wholly or partly suspended.
Further, when there are multiple charges, as here, the sentence must not offend the principle of totality. What that means is that an offender must not be punished any more than is proportionate and appropriate to his or her overall offending. This is achieved by orders for total or partial concurrency.
Overlaid on those general sentencing principles however are some specific provisions which apply to serious offenders, which you will be, once I come to sentence you on the third charge. Those provisions require me to consider protection of the community as the principle sentencing purpose and entitle me to impose a sentence which is disproportionate to the gravity of the offending to achieve that purpose. Further, they create a presumption of cumulation of sentences which operates to moderate the principle of totality to some extent.[14]
[14] Director of Public Prosecutionsv Bales [2015] VSCA 261 at [38] ff.
In sentencing for sexual offences against children general deterrence and denunciation are paramount sentencing considerations. To quote a former Justice of Appeal in a case known as Toomey:
'Often such victims, experiencing unjustified feelings of embarrassment, shame and guilt that have been induced by the behaviour of the perpetrator, will continue to remain [silent] for many years. Accordingly, and very frequently, as in this case, the commission of the offences will not be exposed until long afterwards. Considered in this light, it is my opinion that the principle of general deterrence must assume very considerable significance as a sentencing consideration. Further, it is incumbent upon the courts, however long ago the offences were committed to express the denunciation of the community of such behaviour, through the sentences imposed on perpetrators. They must be seen to vindicate the values of the society that they represent, fundamental to which is the protection of its children.’[15]
[15]Director of Public Prosecutionsv Toomey [2006] VSCA 90 at [17] per Vincent J.
In short, people who are tempted to offend against children in the belief they can do so with impunity need to know that when their crimes come to light, they will be punished severely no matter how much time has passed.
In the same case the same Justice of Appeal made the point that crimes such as yours are extremely serious not only because they impact the individual victims, but because they damage the community as a whole. To quote again:
‘The exposure over recent years of the extent of the incidence of abuse of children in our community by persons entrusted with their care has created much distrust at all levels and threatened the very capacity of adults to interact in a normal healthy fashion with them.’[16]
[16] Ibid at [20] per Vincent J.
Similarly, the Court of Appeal in a recent case emphasised the importance of general deterrence in cases of historical sexual offending not only because such crimes often cause ‘irreparable and lasting harm to the victim, but also to the victims’ families, friends and associates’.[17]
[17] Director of Public Prosecutionsv Bales [2015] VSCA 261 at [51].
Of course, the need for my sentence to deter others and denounce your conduct is not the end of the matter. I must and do take into account the various mitigating factors I have already outlined in detail, including your pleas of guilty, remorse, agreement to pay compensation, age, subsequent good character and rehabilitation.
Your demonstrated rehabilitation means there is no need for my sentence to specifically deter you. Further, I am satisfied that you do not pose a threat to the community and there is no justification for imposing a sentence disproportionate to the gravity of your offending.
However whilst significant, rehabilitation such as yours, is by no means exceptional in these sorts of cases and nor is delay.[18] In according due weight to your mitigating factors, I must be careful not to impose a sentence, including a non-parole period, which effectively devalues the gravity of your offending or fails to recognise the significance of what has occurred to your victims.[19]
[18] Director of Public Prosecutionsv Toomey [2006] VSCA [14] and [26].
[19] Ibid at [14], [22] and [24].
I have balanced the competing considerations as best I can to arrive at your sentence. I am conscious of the legislative policy behind s.6E of the Sentencing Act, but ‘otherwise direct’ to give effect to my orders for cumulation and concurrency.
Sentence
If you could stand please.
On the first indictment, on Charge 1, I convict you and sentence you to eight months imprisonment. On Charge 2, I convict and sentence you to 24 months imprisonment and that is the base sentence. On Charge 3, I convict and sentence you to 14 months imprisonment.
On the second indictment, on Charge 1, I convict and sentence you to 14 months imprisonment. On Charge 2, I convict and sentence you to 24 months imprisonment.
I direct that one month of Charge 1, on the first indictment, five months of Charge 3 - of the sentence on Charge 3 on the first indictment, five months of the sentence on Charge 1 on the second indictment and two months of the sentence on Charge 2 on the second indictment, be cumulative on Charge 2 on the first indictment, that is the base sentence, and on each other.
That makes a total effective sentence of 37 months, which is three years and one month and I direct that the non-parole period be fixed at 20 months. So that is one year and eight months. That is the earliest time at which you can be released. It does not mean you will necessarily be released at that time, it is up to the parole authorities, but that is the earliest time at which you can be released.
I direct that in relation to Charge 3, on the first indictment, and Charges 1 and 2 on the second indictment, it be entered into the records of the court that you have been sentenced as a serious sexual offender.
Presentence Detention
There is no pre-sentence detention to declare.
Section 6AAA
If you had not pleaded not guilty to these charges, and been found guilty by a jury, I would have sentenced you to a total effective sentence of imprisonment of five and a half years, with a non-parole period of four years.
I direct further that Ms Matthews' report be provided to the Office of Corrections, so that the prison authorities are aware of it, particularly her concern about your risk of suicide.
Sex Offender Registration
Now I need to tell you about the Sex Offender Registration. You have been found guilty of more than three Class 2 offences within the meaning of the Sex Offenders Registration Act 2004 (Vic). This means that you will be required to comply with the reporting obligations under that Act for the rest of your life.

The Sex Offenders Registration Act provides that you must be given a notice setting out your reporting obligations under the Act and what will happen if you do not comply with those obligations.
The court or your lawyer will arrange for that notice to be sent to you in prison because obviously you are not here in court in person.
Even though you will have a copy of that document in due course, I will give you an idea about what is involved.
You are required to report to Victoria Police within seven days of being released from custody.
A telephone number is provided on the first page of the document you will receive, which you are required to call to arrange a date and time to make an initial report. You will then be required to go to your nominated police station each year to make an annual report:
·You have to give details of your address, occupation, vehicles, internet provider, social media usernames, passwords and the like. You have to notify of changes in your personal details. You have to notify of intended travel interstate and seek permission to travel overseas. It is all set out in the document.
·Failure to comply with your reporting obligations is a criminal offence. So, if you do not comply you will be charged and will have to appear in court again.
So Mr Holleman, you understand the sentence I have imposed? The total effective sentence is three years and one month and the non-parole period is 20 months. Do you understand that?
OFFENDER Yes, Your Honour.
HER HONOUR: Very well. And you also understand what I just said about the Sex Offenders Registration?
OFFENDER: Yes, Your Honour. Thank you.
HER HONOUR: Yes, thank you. All right counsel, are there any other matters I need to attend to?
MR DEVLIN: Your Honour, I'm sure your maths is right, but can I just check concurrency?
HER HONOUR: Yes.
MR DEVLIN: It's one month on the first indictment, one month on Charge 1?
HER HONOUR: Yes.
MR DEVLIN: And five months on Charge 3?
HER HONOUR: Yes.
MR DEVLIN: And on the second indictment, is it five months on Charge 5?
HER HONOUR: Charge 1.
MR DEVLIN: Charge 1.
HER HONOUR: Yes.
MR DEVLIN: And two months on Charge 2?
HER HONOUR: Yes.
MR DEVLIN: Can I just do the maths, Your Honour?
HER HONOUR: Yes.
MR DEVLIN: And 24 months is the base?
HER HONOUR: Yes.
MR DEVLIN: So we've got four - 11 months of concurrency on top - - -
HER HONOUR: Well let's just look at cumulation, that makes it easier does it not?
MR DEVLIN: Sorry Your Honour?
HER HONOUR: If we look at cumulation, that makes it easier than looking at concurrency.
MR DEVLIN: Yes, Your Honour.
HER HONOUR: So if you've got the - Charge 2 is 24. One month from the first charge - Mr Holleman you can be seated for the time being, thank you.
OFFENDER: Thank you.
HER HONOUR: One month from Charge 1 on top of that makes it 25 months.
MR DEVLIN: Yes.
HER HONOUR: Five months from Charge 3 on top of those two makes 30 months.
MR DEVLIN: Yes.
HER HONOUR: Then on the second indictment, another five months cumulative on the first charge, makes 35 months and then another two months cumulative makes 37 months.
MR DEVLIN: And that - that's correct, Your Honour.
HER HONOUR: Yes.
MR DEVLIN: Sorry Your Honour, - - -
HER HONOUR: No that is all right.
MR DEVLIN: I just missed one figure and - but thank you, Your Honour. There's no further submission from the prosecution.
HER HONOUR: All right, thank you. Mr Tiwana, nothing you wanted to raise?
MR TIWANA: Nothing at all. Thank you, Your Honour.
HER HONOUR: All right. Thank you very much. If Mr Holleman can obviously be removed and taken into custody and we will cut off the video link, thank you.
MR TIWANA: Thank you.
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[2020] VCC 1158

31 July 2020