Director of Public Prosecutions v Hoover (a pseudonym)

[2025] VCC 157

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT GEELONG

CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

LARRY HOOVER (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE TINNEY
WHERE HELD:	Geelong
DATE OF HEARING:	20 and 21 February 2025
DATE OF SENTENCE:	21 February 2025
CASE MAY BE CITED AS:	DPP v Hoover (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2025] VCC 157

REASONS FOR SENTENCE

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Catchwords: Sexual assault of child under 16. Plea of guilty after sent back for retrial by Court of Appeal. Totality as serving 13 ½ years with non-parole period of 8 years 4 months after Court of Appeal decision. Father touching 9 year old daughter on outside of clothing in genital area. Standard sentence scheme; serious offender. Sex Offender Registration Act. Late plea after first jury for retrial discharged and next panel ready to come into court the following morning.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. McKenry	Office of Public Prosecutions
For the Accused	Mr C. Pearson	Adrian Paull Criminal Lawyers

HIS HONOUR:

1Larry Hoover[1], you pleaded guilty yesterday to a single charge of sexual assault of a child under the age of 16. That touching occurred on 5 September 2019 and that child was your youngest daughter, then nine-year-old Vicki[2].  It occurred when you were on deck as the primary care giver. That role was a role that at that stage was shared between you and your ex-partner, Kimberley Warnick.[3] You had been separated for some years by then.

[1] A pseudonym.

[2] A pseudonym.

[3] A pseudonym.

2The touching occurred within the campervan that you lived in at your mother’s property in Lovely Banks. Thankfully, Vicki complained within a few days and the matter was reported swiftly to the police. Your other daughter, Nicole, then also detailed her allegations, which fell at a far more serious level and for which you are presently serving a 13-and-a-half-year prison term.

3This matter has had a very long history before the court. I am not going to set it all out. Plainly enough COVID-19 and its intrusion into the conduct of the business of the courts would have played a role along the way in delaying the forward movement of the matter. There was a period where we simply could not sit.

4You were ultimately convicted of a number of charges relating to Nicole and two charges related to Vicki. The sentencing judge imposed three years' imprisonment on the charge that is now before me. The other charge that existed for Vicki was a far less serious charge relating to pinching on the same occasion, and I am not dealing with that at all. The other charges that pertained to Nicole involved allegations of incest, attempted incest and sexual assault charges. Judge Meredith imposed, as I say, a three year term on what is now Charge 1 before me but which was Charge 5 before him. He cumulated 12 months of that sentence upon the base and other part cumulative matters, and he reached a head sentence of 14 and a half years. He fixed a non-parole period of nine years, and he made the relevant pre-sentence detention declaration. He made an order under the Sex Offender Registration Act with the reporting period required for the remainder of your life. He noted that you were a serious sexual offender.  I have marked those comprehensive reasons of that previous sentencing judge, Judge Meredith, as Exhibit B.

5You appealed against conviction and you were partially successful in that in September of last year the Court of Appeal allowed your appeal in relation to those two charges relating to Vicki. You did not succeed on the other matters. Indeed the Court of Appeal affirmed those original sentences. However, as the matters that you had succeeded on had involved that sentencing judge imposing an additional 12 months, that 12 months dropped away necessarily. So having affirmed the other sentences totalling 13 and a half years, the Court of Appeal then had to deal with a reduction in your non-parole period and that non-parole period was dropped by eight months, to eight years four months.  Charges 5 and 6 were the subject of an order for re-trial (they are the ones pertaining to Vicki) and they became Charges 1 and 2 on the new trial indictment that had been filed.  You had determined, as was your right, to plead not guilty. We empanelled a jury of 12 on Wednesday of this week. You were arraigned on the two matters in the presence of the panel, so now Charges 1 and 2, and you pleaded not guilty, and I was in the throes of giving directions to the jury when we broke for lunch. There was then an odd incident over lunch where one of the jurors was seen to be misbehaving in a strange manner out by the railway station and I discharged the jury. I adjourned the trial until Thursday, so until yesterday, and I called for another panel to be assembled. I came onto the bench at the time I said I would yesterday to bring that panel into court. It was my intention to empanel a fresh jury.  I was told there was some prospect of resolution, so I then stood the matter down and settle it did on the terms I have described. You were then arraigned on that single charge on the filed-over plea indictment, which was the former Charge 5 – and you pleaded guilty and admitted your prior criminal history.

6That was the first occasion that there had been any admission by you of any misconduct, the first and only occasion. I heard the plea yesterday afternoon and I remanded you until today, and that was for a further plea and sentence, for yesterday, given the way in which the matter had unfolded, there really had not been the opportunity for consideration of an impact statement to be prepared. Ms Warnick, who was in court during the arraignment process, wished to provide one and that has now taken place.

7That prior matter that you admitted is from 2008. It is unrelated in its subject matter and it assumes no significance at all to my task. You are of course still in custody in relation to the other matters and have been since that verdict was delivered in September of 2022.  I have been told that your parole eligibility date, your first potential or possible date for release, is in early January 2031, so obviously totality of sentence is of importance in my task notwithstanding the impact of the Serious Offender provisions.

8The agreed summary dated 20 February 2025 that has been filed on the plea hearing yesterday, sets out the agreed facts. I have already gone to them in broad detail. Plainly there was a large breach of trust touching your daughter in this setting. She was only nine years of age, so a child, you were her father and your duty was to protect her.  Instead, you did quite the opposite. You sexually touched her. It was, as these things go, a relatively brief touching and she asked you to stop, and you did. You then counselled secrecy - it was to be your 'little secret' - but that stance was not at all successful. You then took her to Kmart to buy her a late birthday present.

9As I have said, the matter was reported pretty swiftly, and you were interviewed within less than a month and you denied any offending against either daughter.  You stated that the allegations were made up by your ex-partner who you said was grooming the children to lie against you. You admit by your plea that that was complete nonsense - no-one was grooming the children to lie, and they were not lying. The only liar was you. You gave sworn evidence at trial denying any offending and putting forward this nonsense as to the evil manipulation of your children by your former partner. Complete and utter nonsense.

10I will sentence in accordance with the agreed summary.  That summary sets out the maximum penalty, as well as the application in this case of the standard sentence scheme and the Serious Offender provisions

11This was a serious offence committed upon a vulnerable child, your child, and in circumstances of significant breach of trust.

Impact

12There is an impact statement of Ms Kimberley Warnick, the mother of Vicki and Nicole, and it bears today’s date. Ms Warnick read it a short time ago from a position at the bar table. It is a pretty sobering statement when one looks at the impact upon her and Vicki.  There is a description in that statement of the way in which there has been increased distrust in new relationships.  The impact statement speaks of impact upon Ms Warnick but also impact that she has observed in relation to Vicki.  I have to put out of my mind impact upon Nicole here because of course I am not dealing with that sentencing exercise.

13There is a description then of distrust in new relationships.  It is challenging sleepovers, especially when there are men in friends' homes.  There is a description of Vicki struggling with connection with male authority figures, something that has hindered her in her development - teachers and sports coaches.  Even her stepfather found it difficult to build relationships with her.  There are few trusted men in her life and that is because she views men as something of a threat.  There is a reference to the triggers; the songs the phrases, the things that actually provoke an emotional response.

14The mother tries as best she can to shield Vicki from this crime and the way this crime - and I am dealing only with this crime - has affected Ms Warnick personally.  She tries to support them, obviously, but there has been a significant alteration in her life and her attitude to life.  She cannot give Vicki back her childhood,

15There has been financial impact, and she, in her own life, has had to exercise caution in terms of who she lets into her life with a requirement that her partner prove himself and build a healthy relationship. She speaks of the impact of this matter being over her head and the implications that have been loosely thrown up at her, accusations of lying about the abuse.  This is the reference, no doubt, to the suggestion that she was manipulating your daughters to lie about their father.  So she describes, no doubt in reference to something she heard yesterday on the plea, about the comfort that might be provided by a guilty plea - there is none for her.  She says:

‘It brings me no comfort that he', you, 'has finally admitted guilt. The trials are over, the damage is done, there is no relief, no happiness, no positive emotion at all, just a heavy weight that we carry because Larry and I both knew in September of 2019 that Vicki was telling the truth and that he was abusive.  He has just dragged it on since then.  There will be no reconciliation between Larry and my children.  His guilty plea brings no peace for us.' 

16As I say, it is a pretty sobering impact statement.   It is hardly surprising that there would be impact in a case such as this.

17I do not let the impact statement, and the impact arising from these crimes, swamp all the other considerations that I have to take into account in my sentencing task. I have to guard against that.  But I do have to take into account the impact, and I do here. It has been very sizeable.

In Mitigation

18Mr Pearson conducted the plea in mitigation on your behalf, predominantly yesterday. He relied upon a written outline of submissions for the plea dated 20 February 2025, as well as an old report from Martin Jackson and a list of your educational and course completions whilst you have been a prisoner.  He also has filed this morning two character references, one from your mother, one from your sister.  They have been marked as Exhibit 4.

19I have already marked the sentencing reasons of Judge Meredith.  They are marked as Exhibit B on the plea.

20Either by reference to the written materials filed on the plea or the oral submissions supplementing those written materials, Mr Pearson has provided me with sufficient detail as to your family and educational, work, drug use, relationship, physical and mental health issues and background. In reality he was incorporating the references to those sorts of materials in Mr Jackson's report, as well as what was mentioned, and for that matter, the findings made by Judge Meredith from those sentencing remarks that I have referred to, things dealing with personal circumstances and mental state issues that are spelt out from paragraphs 34 to 45 of those original reasons. I do not see any point in descending to the full detail of that material. I do take it into account.  

21He made some submissions to the court as to your time in custody to date and the steps that you have taken including courses that you had done and the work that you were doing, and he addressed me briefly as to the objective gravity of the offending, pointing out some of the features of aggravation that were lacking in this case. 

22In the plea in mitigation, he was relying principally upon the following matters in mitigation:

·     Your guilty plea, as late as it was;

·     The absence of any relevant criminal history other than of course the matters the subject of the undisturbed verdicts;

·     He relied upon your efforts taken in custody;

·     He relied also upon the impact upon my sentencing task of the earlier individual sentence, and for that matter the total effective sentence imposed by Judge Meredith. It operated, he argued, as something of a ceiling for me, and the argument was that you ought not do any worse and that you really ought do better given that you have now actually pleaded guilty, and there must be some allowance made for that.

23There was really not much in mitigation in this case.  He was not suggesting that any of the principles from cases of Bugmy or Verdins had any role to play in my task and undoubtedly that concession was correct. He was conceding that a prison term was required, and one which would extend your time in custody and put back your earliest possible release, but he queried whether that could be done by way of imposing a straight sentence with some cumulation achieving those ends, or whether the court would need to deal with you and make an order fixing a new single non-parole period pursuant to s14 of the Sentencing Act .

Prosecution

24Mr McKenry who was prosecuting had little need to respond. There really was no controversy as to the defence submissions that had been made. The prosecutor did not dispute that the plea had to be given some weight, it was not a minor matter that you had publicly acknowledged your guilt.

25The Director of Public Prosecutions was calling for a prison term, obviously enough, but so much had been readily conceded by Mr Peason. 

Background

26I will turn to your background briefly - briefly, as I have no reason not to accept the submissions and the material placed before me as to your family and personal background. It is set out in the expert report but also in the comprehensive sentencing remarks of Judge Meredith. There is just no point in me setting it all out chapter and verse.  Very briefly then by way of executive summary, you are now 37 years of age. You grew up as part of a large family in the Geelong area. It is plain that you had some learning difficulties at school and it is plain that you do not function at a high level.  That much is clear from the report of Mr Jackson.  You left school at Year 9 level and you seemed to have had a reasonably decent employment record. You have worked pretty consistently in a range of occupations over the years.  So you have at times been a productive enough member of the community. I have said already you have no relevant prior criminal history, there is only that one appearance back in 2008 that has no relevance to my task.  Of course, the proven matters as against Nicole were extremely serious. Those charges relating to her occurred in the similar timeframe from 2018 to 2019. She was only a young girl as well, and those offences, as is clear, were more serious involving penetrative offences. Indeed, as I have said in the course of discussions earlier today, in the same visit where you offended against Vicki on 5 September, the matter that I am dealing with, you offended against Nicole the very next day in a similar fashion.  It is clear then that you have abused each of your daughters sexually. There is nothing by way of risk assessment before me, and there is no reduction in your culpability at all from any matters personal to you. You knew exactly what you were doing. I do accept that you have many years to serve before being eligible for possible release on parole and that there is a deterrent component afforded by the time you have served already, and the lengthy time which lies ahead of you.

27I have dealt only really very briefly with your background.  You are of course far more than just the person committing this offence. The character references which were late filed spell out the way you are viewed by your mother and your sister, and I do not ignore them. I take them into account.

28You have been doing a number of courses and programs in custody and you are also working whilst in custody and of course those things are positives.  I am told that you are in protection, you at Hopkins.

Guilty Plea

29I turn then to some of the other matters raised in the course of the plea conducted by Mr Pearson.  Firstly, the fact of your guilty plea and the stage it was entered.  It is conceded it was a very late plea, that is plain, and it is equally plain it cannot command the same sorts of very sizable discounts for a guilty plea where there is a very large utilitarian benefit, as sometimes is the case for a very early plea. A very early plea involves savings of time and cost and effort and also of course spares witnesses the experience of giving evidence - none of them were spared here.  You ran a trial, that was your right and you must not be punished for doing that.  You pleaded not guilty and you were convicted of the charges and then successfully appealed on Charges 5 and 6 pertaining to Vicki. You were then intent upon running another trial. Again, that was your right. It was only going to be a short trial of four or five days. Well, we have utilised two jury panels this week, one jury we lost after you were arraigned on Wednesday and you pleaded not guilty, and then the next panel was summonsed to attend yesterday - they all attended - well, they were not needed because of this alteration in your approach. So, a guilty plea cannot come much later than yours.  This trial was being done on the tapes and by that I mean none of the witnesses were going to be required to attend to give evidence again. The only witness to be called live before the jury was the police informant.  So Vicki was not required to give evidence again, she had given her evidence and she had been cross-examined by counsel who was acting on your behalf, quite gently, having read the exchange. It was Ms Brown who was conducting that cross-examination. Vicki’s mother, Ms Warnick, was far less gently dealt with, if I may say so, by Mr Hands in that cross-examination before the jury conducted before Judge Meredith. So none of the witnesses have been spared the experience of giving evidence by this ultimate resolution of this matter.

30It is a very late plea, so much is admitted.  There is very little by way of savings in terms of court time and the like and it was not for one moment suggested that there was any remorse here. Nonetheless, Mr Pearson said it was significant in that you had at least taken responsibility and done so publicly. He argued that there might be some solace or comfort in that for Vicki or for her mother, that this was no minor matter, that you brought the matter to an end and with an admission by you.  I have the impact statement that has been filed today and read aloud by Ms Warnick, and she speaks of the lack of comfort provided to her at least, in this setting.  It is possible there might be some change along the way.  Had this matter gone to a jury, all the way to verdict, of course one never knows what might have happened. People might have been riding on the outcome. There might have been some stress involved in that.  Even in the face of a guilty verdict, you might have been the sort of person who might have maintained the nonsense about having been falsely accused and then falsely convicted.  Well, there is a public acknowledgment by you in this court that you did what is alleged, and it may yet be of some value to your immediate victim and to her family.  There is no comfort at the moment, that much is plain.

31As a matter of law, I cannot ignore the fact of your guilty plea, as late as it is. You have, by uttering that word yesterday when arraigned, admitted your guilt.  You have done that publicly.  You have, to that extent then, taken that step.  Whether it involves an acceptance of responsibility is debatable in the sense that there is no remorse here at all that I can see, not a shred of it.  But by that word being uttered you have relieved the crown of the need to set out to prove this allegation - that would have taken a few days - and nothing is ever certain in these things.

32So you have brought the matter to an end by your stance.  You have by your plea taken legal responsibility for your crime.  I believe there is some chance down the track that it might be of some value, not at the moment, to the family.  But I have to make some allowance for your guilty plea as a matter of law.  If I did not I would be falling into error.  So I do make some allowance for the fact of your guilty plea, though I say very directly, it is not anything like the sort of allowance which would have been made for a plea made at the first opportunity and one with all the savings of cost and effort and the sparing of witnesses embraced by that sort of stance. I am not dealing with that at all here.

33You have though facilitated the course of justice, and late though it was, you must still be rewarded for pleading guilty.  That is simply the law.

34I take these matters into account in mitigation.

35I have said already, I am not able to infer a shred of remorse from your plea and nor does your counsel suggest that I should.  That is not a matter in aggravation. It is simply the absence of a matter in mitigation.

Rehabilitation

36I want to turn then to your prospects of rehabilitation. I have already dealt with some of these issues already in my earlier remarks.  With the exception of those convictions in relation to Nicole, of course you have no relevant convictions at all. You have only that one formal prior matter in your history back in 2008, which is of no relevance to my task. You have had a decent enough employment record over the years. There is obviously some family support for you. You are tucked away in custody for many more years. You have already spent close to two and a half years there.  I am told, and I accept, you are prepared to do such courses as you are told to do including a sex offender's course.  That sort of thing would not be rolled out at this stage of your sentence. It would come at a much later stage.  It may well be a condition of any sort of application for parole eligibility that you do a course such as that.

37I am told that you are keeping to yourself. You are in a position of some trust working in the maintenance crew, it is clear that you have done courses and programs.  I mentioned earlier this morning that there are no risk assessments, and you have now offended against both daughters when they were very young. That is, on any view of it, not normal behaviour. It speaks of some strange or warped mindset at that time.  I do not know what makes you tick.  What I do know though is that you were a 31-year-old, so a mature man, a father, offending against each of his daughters, and I am dealing with of course only one of the offences. It was argued that you would likely never be able to access children again. That there will be the lifetime Sex Offender Registration Act obligations upon your eventual release.  They require reporting of contact.  I mentioned reference in your sister's letter to her hope that upon your ultimate release you would get to meet your new nieces.  The sexual offences for which you have now been dealt with, and of course I am sentencing you only on one, well they relate to each daughter. You will never be able to offend against them as children, that much is clear, for the simple reason that they will not be children, such is the time you have yet to serve in prison irrespective of what I do.  What then are your prospects of rehabilitation? What then is your risk of re-offence?  These things are terribly difficult for me to gauge sitting where I am sitting, where there is no explanation provided for the offending in terms of any sort of psychological issues.  There is no reduction of culpability arising from any intellectual deficits or anything else that might have contributed to the offending.  It is hard not to be relatively guarded in this assessment.  I really do not know what motivated you.  Ultimately though, having considered the matter, I believe that you have realistic or reasonable prospects into the future.

The Report of Mr Jackson

38I have mentioned already the report of Martin Jackson.  It is an old report, and it does not in any way address this now admitted act.  At the time that you were being assessed, you were being assessed in relation to all the matters for which you had been found guilty in front of Judge Meredith, matters that you were then disputing.  Of course, now you have pleaded and admitted your guilt in relation to Vicki.  l am not going to set out the detail from that report, there is just no point.  It does set out some of your personal background and comments on your level of functioning having had tests administered to investigate that.  

39I have already said Mr Pearson was explicit in disavowing any reliance on any of the limbs from the well-known case of Verdins v The Queen or the application of any of the Bugmy principles spelt out in the High Court and re-affirmed in many Court of Appeal decisions. I do take Mr Jackson’s report into account, it goes into your background in some detail including, as I say, your level of functioning, and that really is why it was placed before me.  

Delay

40Now no direct submission was made to me as to delay. This case has had a pretty tortured chronology, and I do not ignore that fact. It is probably a torturous thing for all concerned; for you, for the mother of your victim, for Vicki and obviously for Nicole as well.  I am sure there would have been some contribution posed by COVID-19 along the way.  This is not a large matter in my task. The fact is you have been a serving prisoner since September 2022, one undergoing sentence.  At least you have stayed out of trouble and at least you are making some efforts in custody in the course of that delay, and I take those matters into account.   

The Offence

41I briefly then return to the offence itself. Briefly because the agreed summary describes your offending.  I have already described it really in broad terms in my reasons, there is just no point in me repeating all of those agreed facts that are set out in that agreed document marked as Exhibit A.

42This was a serious offence, make no mistake. It was relatively brief touching over the clothing, but it was to a very intimate area. At least you did stop. Against that though, this was your nine year old daughter. She was in your care. You completely breached your duty to her and to your ex-partner when you think about it. This sort of offence, a charge of sexual assault of a child under the age of 16, does not have built into it in the way that an incest would, the concept of breach of trust.  Sexual assault of a child under the age of 16 may not involve that sort of breach of trust, but yours did, and ‘in spades’ - you were her father.  You told her to keep the matter a secret and thank heavens she did not. 

Serious offender provisions

43You fall to be sentenced as a serious sexual offender and as a result the protection of the community is the principal purpose of sentencing. To achieve that purpose a court has the power to impose a disproportionate sentence.  No one suggests that I have in this case the capacity or the need to impose a disproportionate sentence, and I will not. The serious offender provisions also remove the presumption of concurrency of sentence and to an extent then, modify the principle of totality. It is still an important principle in this case given the scale of the existing sentence.

Standard sentence scheme.

44I must also pay regard to the standard sentence scheme.

45The standard sentence for this offence is four years.  That period is the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness. 

46The standard sentence is only one of a number of matters that I am required to take into account.

47It does not have primacy over other factors which have to be taken into account. It introduces an additional factor in the form of a legislative goalpost.  This scheme was not intended to interfere with the way we go about our sentencing task with the intuitive synthesis which lies at the heart of sentencing in this State.

48It was never intended to bring about two-stage sentencing and that approach is prohibited.

49This scheme does not otherwise affect the matters that a court must take into account. It does not alter the requirement that exists for me as the sentencing judge to assess the seriousness of the offence or affect the manner of assessing the seriousness of the offence.

50Sexual assault of a child under the age of 16 is an inherently serious crime. Here, as I have said, the child was nine and the child was your daughter, and  she was in your care. Viewed objectively, this is, in my view, a serious enough example of the offence of sexual assault of a child despite the short duration and despite the ‘over the clothes’ nature of this touching. It is my view that this instance of sexual assault of a child falls around the mid-range, taking into account only those objective factors affecting the seriousness of the offence. 

Sentence after retrial

51I am dealing with you after you have gone to trial, been convicted of this and other offences, succeeded in your appeal in relation to this matter, and then had it remitted back to this court for retrial. I cannot just ignore that chronology. I am not free to. Had you conducted a trial before me which ended in a guilty verdict there is a line of case law which spells out the very strong influence of the earlier sentence upon the new sentencing judge. The new judge, so someone in my position, after a re-trial, is of course exercising their own sentencing discretion, but there are very powerful policy reasons as to why ordinarily - not always, not invariably, but ordinarily a successful appellant should do no worse than he or she did at the trial the subject of the successful appeal.  I have referred to many decisions including McL[4] and Fitchett[5].  Well, of course, you have not gone to trial and been found guilty by a jury. You have pleaded guilty and that must attract a benefit. Plainly you must not do worse and in my view you ought do better than you have done in the past, but not by a large margin given the lateness of the plea.

[4]R H McL v The Queen [2000] HCA 46.

[5]R v Fitchett [2010] VSC 393.

Purposes

52I have to consider a number of purposes of sentencing. Rehabilitation is one such purpose.  I said earlier that your prospects are a bit hard to assess but I was prepared to judge them as being reasonable or realistic.  That is only one of the purposes of sentencing.

53I have to give appropriate weight to the other purposes of sentencing.  I am required to punish you, and I have to do that justly and proportionately.  I must also denounce your conduct. These are each important sentencing purposes. I do strongly denounce your conduct, you really should be ashamed of yourself, but I see no signs of that at all - none.

54I must pay regard to the need to protect the community from you. That is the principal purpose of sentence here owing to your status as a serious sexual offender.  That is a status derived from the fact that sentences have been passed previously in relation to offences that trigger these provisions in relation to this one sentencing exercise today.

55I have to give adequate weight to specific and general deterrence. Specific deterrence relates to the need to deter you.  Plainly, it is an important sentencing purpose here.

56General deterrence relates to the need to deter other future offenders, and it must be given real weight in my sentencing task.  Sexual offending against children is always serious. General deterrence is of real significance.  

57The courts must pass sentences which will cause those considering committing crimes such as yours to reflect and to re-consider their position. We set out to deter like-minded future offenders.

58I have to pay regard to the impact of the crime.  It has plainly been significant here.

59I must pay regard also to the maximum penalty.

60I have to pay regard to current sentencing practices but that is not a single controlling factor.  I have looked at the statistical material on the Sentencing Advisory Council site for this crime.  As it is a standard sentence matter, I must not pay regard to sentences which have not been subject to that scheme.

61This sort of statistical material though has inherent limitations.  I have looked also at the Judicial College of Victoria online assortment of sentencing cases.  

62I am sentencing you for your crime. That is not a statistical or mathematical task. The outcome in this case is not dictated by what has happened in other cases or by the average outcomes as disclosed in the statistical material.  Things such as that, statistics, they will never disclose why a particular sentence was selected by a Judge. They will never spell out all the matters both in aggravation and in mitigation.

Totality

63Though I am only dealing with you for a single offence, I do need to take into account the principle of totality of sentence.  I have to consider the relationship between my sentence and the other sentence that you are presently serving. I have taken a last look at the effect of my orders for cumulation upon your existing sentence, and I have done that to ensure the overall effect is not crushing and is commensurate with your overall criminality.

64Plainly, a court must never impose a more severe sentence than that which is required to achieve the purposes of sentencing.  Prison is always a disposition of last resort.  Well, you are already there, and for a significant period, and plainly there is no other option here, as was correctly conceded by your counsel.  That would be the position, frankly, irrespective of the sentence you are serving.  This offence must be met by a term of imprisonment.

Sentence

65I will have you stand up now please. 

66On the one charge before me, Charge 1, sexual assault of a child under 16, I convict and sentence you to two and a half years' imprisonment. 

Cumulation

67I direct that eight months of that sentence imposed on Charge 1 on this indictment will be served cumulatively, that is on top of, the sentences imposed by Judge Meredith back on 14 December 2022 and which were affirmed by the Court of Appeal on 19 September 2024

Global Total Effective Sentence  

68That order then results in a new head sentence or global total effective sentence of 14 years and two months' imprisonment.

69I will have you sit down I think at this stage.

70You have already served a significant portion of the sentence imposed by Judge Meredith which was reaffirmed by the Court of Appeal. You get the full benefit of the time you have served already. There is no need for me to make a s18 declaration. There is nothing to declare. Pursuant to s14 of the Sentencing Act I am required to fix a new single non-parole period. What is critical is that I make it clear when it is that the new single non-parole period commences. There are two ways of doing this; either backdating it to the date of Judge Meredith’s original sentence or commencing it from today’s date and making allowances for the time that you have served to this point.  I am very much awake to the views expressed by Justice Brooking in the case of R v Rich.[6] He took the strong view that uniformity was desirable and that the new single non- parole period should commence on the day that it is actually fixed. That would be today. Well, I have adopted that approach in the past in a number of cases and have then run into very sizeable problems with the interpretation of that style of order by the prison authorities. In any event, what is critical is that there is certainty as to when it commences, and I will provide that in these reasons. Pursuant to s14 of the Sentencing Act I fix a new single non-parole period of eight years and nine months. That new single non parole period will commence on 14 December 2022, the day upon which you were sentenced by Judge Meredith. My intention therefore is to add a period of eight months to that head sentence and a period of five months to your earliest parole eligibility date, which I believe I achieve by fixing this new single non-parole period in that fashion.  There is no pre-sentence detention declaration required. As I have said, in this case, you get the benefit of all the days you have served to date. See the case of Stares[7].

[6] R v Rich (No 2) [2002] VSCA 17.

[7]R v Stares [2002] VSCA 70.

6AAA

71I have told you that I have taken into account your guilty plea. If you had pleaded not guilty and been found guilty of this charge, I would have imposed a three- year term. I would have cumulated 12 months and I would have fixed a new single non-parole period of nine years.  In other words, you would have emerged with the same sentence as was originally imposed by Judge Meredith.

Sex Offenders Registration Act 2004

72I have to tell you now about your new obligation under the Sex Offenders Registration Act 2004. When I say 'new', the fact is frankly it is the same as your existing obligation. You have been sentenced by me today in relation to a single Category 2 offence. It is agreed that as a result of the previous matters for which you have been sentenced, yet again then this invokes a lifetime obligation to report under those provisions. I am going to have handed to you in a moment a very lengthy document. You have seen one of these before, it explains all of your obligations under that Act. It details your reporting obligations. There are lots of other things spelt out including the things you must not do and the things that you must do. You will see that there are prohibitions upon gaining any employment in any child-related activity. There are requirements to report any communication or contact with children. It would take me a very significant period of time to go through every one of these obligations and to explain them, I do not need to, that is not my purpose at this stage. You will need to familiarise yourself with these conditions again. What I am going to do is have you sign a form, and that is purely to acknowledge yet again that you have received those materials, and then, as I say, you will need to familiarise yourself with those obligations and comply when they arise, because they will not arise for many years.

73Mr Pearson, you have seen these documents before, they are very detailed.  He has seen one before as well, of course.  I am not expecting he is going to sit down there now and read it all. What I am providing him here is the notification and it is for him to simply acknowledge receipt of the documents. I might have you just go down with my associate and have him sign at the appropriate point.  If you would do that, please.

74MR PEARSON:  Yes, I will do that, thank you, Your Honour.  So, Your Honour, Mr Hoover has signed his acknowledgement of having received those documents.

75HIS HONOUR:  Yes, thank you for that.  All right, well that's been acknowledged.  I think I have already signed it, haven't I?

76MR PEARSON:  He signed it in the wrong place but in any event, Your Honour, (indistinct).

77HIS HONOUR:  Well that has been signed and it simply repeats his lifetime obligation in an event.

SERIOUS SEXUAL OFFENDER

78A final matter I believe is that I have sentenced him in relation to this charge as a serious sexual offender and that fact is to be noted into the records of the court.

79Are there any other matters I need to deal with.

80MR McKENRY:  Your Honour, can I confirm the dates that Your Honour said that the non-parole period - the new non-parole period would commence from.

81HIS HONOUR:  I have back-dated - when I say back-dated, it runs from the date that a non-parole period was imposed by Judge Meredith.

82MR McKENRY:  The concern I have with that is that Your Honour did not take account or did not record any pre-sentence detention, but Mr Hoover was in custody from the date of the jury verdict which was 21 September 2022.

83HIS HONOUR:  Yes, but he gets the credit for all his PSD.  But look, that's my understanding.  I have tried to do this every which way and every time I've done it in the way that's commended by Brooking J, if I was going to start it from today, and obviously my intention is to produce a non-parole period of eight years, nine months, I would need to go through all the calculations to work out the nature of the non-parole period to be commencing from today.  I think there's a real danger in doing that.

84MR McKENRY:  I am not suggesting Your Honour take that course.

85HIS HONOUR:  Yes.

86MR McKENRY:  It was simply the start date of the non-parole period - it's Your Honour's intention that that commence as at the date of sentence which was December - - - 

87HIS HONOUR:  Yes - - - 

88MR McKENRY:  Rather than about him going into custody.

89HIS HONOUR:  I am confident he will get - from the way it's been administered previously - that he will get the credit for that PSD.  He will get all his PSD.  There's no need to further declare it or to back-date it to the first date that he went into custody because - if you look at the decision of Stares, it makes that plain.  Now, look, if there's ever an issue about this, if he gets his full remand record that discloses that it's not being treated in that way, then I can always amend it.  But that's the way that I view it as appropriate to mark it out, it goes back to the date of sentence.  I know that I'm not making a PSD declaration, I am not meant to, and I know there's that period prior to that date when Judge Meredith sentenced which he then declared.  I am confident the authorities will carry forward all of the PSD that he has accumulated, and if I am wrong, well we can always correct it.

90MR McKENRY:  I understand that, Your Honour, I have no other matters.

91HIS HONOUR:  Anything from you, Mr Pearson.

92MR PEARSON:  No, Your Honour.  As I said in the course of the plea, I always, in circumstances where there is a bit of complexity to the sentencing orders, I urge my instructor to get the remand history once it's been updated and see that it reflects Your Honour's intention, which Your Honour has clearly articulated.  So if there is an issue in that regard, I will contact Your Honour's staff and we'll see if we can correct it some way.

93HIS HONOUR:  I mean, if I was approaching it in a different fashion and seeking to get to this same outcome, eight years nine months, and if I adopted Brooking J's suggestion that it should be starting on the day of the sentence being pronounced by me, I would need to then - I would need to do the maths, wouldn't I?

94MR PEARSON:  Yes.

95HIS HONOUR:  And then deduct from that new single non-parole period the time he's already served.  I think the problem with that is - I mean there might be emergency management days lurking in there as well - - - 

96MR PEARSON:  There probably is, Your Honour - - - 

97HIS HONOUR:  Things like that and the fact that I've done it in the past and I have not been greatly successful has led me to do this.  But as I say, if there's ever any issue about that and the way it's being interpreted, it's a simple business to come back and I can - - - 

98MR PEARSON:  Of course.  And the bottom line of course is that Your Honour's indicated that Your Honour's intention was to add eight months to the top figure and five months to his non-parole period so - - - 

99HIS HONOUR:  Yes.

100MR PEARSON:  If that gets translated in a way that is other than that, I will see what we can do about it, Your Honour.

101HIS HONOUR:  All right.  I'll contemplate whether I even have that additional phrase on the actual formal order - - - 

102MR PEARSON:  No, no, I'm not suggesting Your Honour need do that but - - - 

103HIS HONOUR:  Well, I'll have a think about it, I mean I don't want it to be misinterpreted.  Nothing else from you?  So you'll go down and see your client and - - - 

104MR PEARSON:  Yes, I'll be down there shortly, Your Honour.

105HIS HONOUR:  Thanks very much. 

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