Director of Public Prosecutions v Johns (a pseudonym)

[2018] VCC 2181

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

Dalton Johns (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE O'CONNELL
WHERE HELD:	Melbourne
DATE OF HEARING:	16 November 2018
DATE OF SENTENCE:	18 December 2018
CASE MAY BE CITED AS:	DPP v Johns (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2018] VCC 2181

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Indecent act with child under 16 (6 charges); Incest by step parent (4 charges); Sexual penetration of a child under 16 (4 charges); Attempted incest (2 charges); Indecent assault (1 charge); Plea not guilty; Four victims; Offending over 10 year period; Use of alcohol and drugs on young victims to facilitate offending; Serious examples of serious offending; Offender admitted offending post-trial; Submitted offender had at least “inchoate remorse”; Question of remorse treated as neutral; Sentencing considerations pertinent to incest.

Legislation Cited:  Crimes Act 1958 (Vic), Sex Offenders Registration Act 2004 (Vic), Sentencing Act 1991 (Vic).

Cases Cited:DPP v Dalgliesh [2017] HCA 41; 349 ALR 37; DPP v DalglieshNo.2 [2017] VSCA 360; Reid v The Queen (2014) 42 VR 295; Harlow v The Queen [2018] VSCA 234; Harmon v The Queen [2017] VSCA 167; DPP v Walsh [2018] 172; Carter v The Queen [2018] VSCA 88.

Sentence:  Total Effective Sentence – 14 years 3 months imprisonment.
  Non parole period – 10 years 3 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Miss S. G. MacDougall	Office of Public Prosecutions
For the Accused	Mr M. Turner	Sally Wilson Legal

HIS HONOUR:

1Dalton Johns[1], on 2 August 2018 in the County Court at Shepparton you were arraigned before a jury panel on 25 counts of sexual assault against 5 complainants.  You pleaded not guilty to each count.

[1] A pseudonym name

2At the close of the prosecution case I directed that verdicts of not guilty be entered in respect of 8 charges being Charges 5, 9, 13, 14, 17, 21, 22 and 25 on the Indictment.

3On 21 August 2018 the jury delivered unanimous verdicts of guilty in respect of all of the remaining 17 charges.

Background

4By way of background, there were four complainants to the charges for which you were found guilty.  For the purposes of these sentencing remarks I will anonymise their identities.

5AB was born in April 1986.

6CD was born in January 1987

7EF was born in December 1987

8GH was born in July 1984.

9You were born on 1 July 1966 and are now 52 years of age.

10AB was your stepson.  CD was his school friend who virtually became a member of your family.  EF was the son of family friends and GH was CD’s brother.

11Your offending spanned an approximate period of 10 years between April 1992 and July 2002.

12You married XY in 1991 and at the time of that marriage her son, AB, was five years of age.  You had a young daughter from a previous relationship who remained in your care.  The four of you lived together in Deer Park.

Charge 1

13In respect of Charge 1, AB gave evidence at trial that you would touch his penis regularly from the time that the family began living in Deer Park and that evidence contextualized Charge 1 being an offence of indecent act with a child under 16.

14As to the specific offence, AB described waking up one night and hopping into you and your wife’s bed.  He said that some time later he woke to find you feeling and touching him on the penis.  He could not remember whether he was touched over or under his clothing.  He asked you why you were touching him and you responded,

"This is how you show that you love somebody, this is how … people that love each other show each other how they love each other."

15AB was six years old at the time.

Charge 2

16Charge 2, being a charge of indecent act with a child under 16, related to an incident in which AB was touched on the penis in the shed at the house in Deer Park.  AB was still about six years of age at this time.  In evidence, he described you groping his penis whilst you were feeling your own genitals.  He said that his mother came out to the shed and interrupted what was going on so you quickly pulled his pants up.

17AB said he did not tell his mum about these incidents, in part, because he was trying to earn your trust and you had told him to keep it secret.

Charge 3

18Charge 3, a charge of incest, occurred when the family had moved to Woomelang in north western Victoria.  At the time you owned a Holden Camira.  On this occasion you went to the local tip and asked AB to get into the back seat of your car where you removed his pants and your own pants.  You then masturbated AB and yourself.  You then put his penis into your mouth whilst you continued to masturbate until you ejaculated.  You then urged him to taste your sperm.

19By this stage AB thought he was seven or eight years of age.  He thought that this was one of the first times he was given a cigarette by you after which you had made the request to suck his penis.

Charge 4

20Charge 4, another charge of incest, relates to another incident where you placed AB’s penis in your mouth at a tip in the Woomelang area.  This incident took place in a different car, a Ford XD station wagon.  You requested AB to get into the back of the car and asked him to take his clothes off.  You played with AB’s penis and then performed oral sex on him.  AB thought he was seven years of age or so at the time.

Charge 6

21Charge 6, which is a charge of indecent act with a child under 16, occurred when you went camping at Green Lake with AB whilst still living at Woomelang.  On this occasion AB described sitting around a campfire drinking alcohol that you had supplied him.  When he started getting tired he went to bed.  He then recalled waking up with you masturbating him and also masturbating yourself.

Charge 7

22Charge 7 which is also a charge of indecent act with a child under the age of 16 relates to a separate occasion whilst camping at Green Lake you sexually abused AB whilst he was in the shower.  You told AB that you had to pay for the shower and to save money for the hot water you needed to shower together.  On this occasion you started washing AB and in so doing touched and masturbated his penis.

Charge 8

23Charge 8, which is a charge of attempted incest, involved an incident where AB described the house at Woomelang as having an extension built between the main house and a rear bungalow.  There was a billiard table located in that area.

24On the occasion the subject of this charge, you encouraged AB to drink alcohol and to try marijuana whilst listening to music.  When everyone else had gone to bed you asked AB to lie on the floor.  You then took his pants off and sat on top of AB, facing away from him, and attempted to introduce his penis into your anus.  AB explained that you were unable to achieve penetration because he was not erect.

25AB was seven or eight years of age at the time you assaulted him in this way.

Camping Trips Near Benalla

26Having lived at Woomelang for about three or four years, you and your family then moved to Benalla.

27Whilst living there you would often take AB and his friend, CD, on camping trips nearby.  By way of background and context both AB and CD described you supplying alcohol and marijuana for these trips.  You would allow the boys to get drunk, smoke marijuana and drive cars before then engaging in sexual activity with them.

28You would often take photographs of the boys including pornographic photographs.  CD gave evidence that he thought there were probably 40 or 50 camping trips within a two or so year period and that on those trips they would drink, smoke and drive your car around.  He said that he and AB would be told to strip down and that it would be a rule that they should run around naked.  The sexual activity that took place on these trips included masturbation, oral sex, urination on one another and penile anal penetration of you by AB or CD.

Charges 10, 11 and 12

29Turning to Charges 10, 11 and 12, being charges of incest, sexual penetration of a child under 16 and another charge of incest.  They relate to one particular occasion on a camping trip that took place at Scholes Road near Benalla.  AB gave evidence that he had been given crushed up Rohypnol by you when this incident took place.  You had brought a vibrator with you on this particular camping trip and when the boys were drug affected you incited them to use it on themselves, and then to insert it into your anus whilst you masturbated.

30Charge 10 (incest) was constituted by the act of inciting AB to insert the vibrator into your anus.  Charge 11, an offence of sexual penetration of a child under 16, was constituted by the act of inciting CD to put the vibrator into your anus.  Charge 12 was another instance of incest which occurred on this occasion, where you incited AB to insert his penis into your anus.

31Other uncharged sexual activity such as oral sex, which contextualized this offending also took place. You took photographs of the boys whilst naked, drug affected and as AB put it “…doing things to ourselves”.

32AB, who described the specifics of this incident in his evidence, thought that he was 11 or possibly 12 years of age at this time.  CD was approximately the same age.

Charge 15 and 16

33Charges 15 and 16, both charges of indecent act with a child under the age of 16, arise on a different camping trip but in a similar context where the boys were drug and alcohol affected.  On that occasion you used a vibrator to stimulate AB’s penis and also CD’s penis.  In his evidence AB described sitting around the campfire with all three of you “wearing nothing”.  He said that the vibrator was used,

"between the three of us to erect our penises and used anally on Dalton."

Charge 18

34Charge 18, which is a further charge of attempted incest on AB.  On that occasion AB was 11 or 12 years of age.  You were driving with him on one of the back roads outside Benalla.  In essence you pulled the car over and attempted to get AB to sit on your lap and insert your penis into his anus.

35You had started performing oral sex on him in the back seat and masturbating and tried to persuade AB to engage in anal penetration.  He said the attempt was painful and described “freaking out” and got out of the car and started to walk back towards town.

36You drove after him and told him to get back in the car however he refused.  You then offered to let him drive the car.  He then agreed.  AB said in his evidence that one of the reasons why he had such a vivid memory of what happened on that occasion was because that was the first time that he had driven a car at 160 km an hour.

Charge 19 and 20

37Charges 19 and 20 relate to two acts of sexual penetration of CD and these offences arise out of one incident which occurred in the Warby ranges, when you and CD went to pick up a caravan from a family friend, Carol Leonard, in Devenish.

38CD gave evidence that you drove with him through the Warby ranges near Wangaratta in the Toyota Tarago you owned at that time.  He said that you pulled into a lookout, and that you both got into the back seat where you removed your clothing.  You then performed oral sex on CD.  You then got him to perform oral sex on you.  CD was approximately 13 or 14 years of age.

Charge 23

39Charge 23 concerned the complainant EF and involved a charge of sexual penetration of a child under the age of 16.  At the relevant time EF was living in Devenish with his father and stepmother.  He gave evidence that he went to a New Year’s Eve party at your home just after he turned 13.  He drank a lot of alcohol which made him feel sick and he vomited.  Sometime afterwards he went to sleep on a foldout bed.  He was wearing boxer shorts and had a blanket to cover himself.

40In evidence, EF stated,

"I just closed my eyes trying to sleep.  The next thing I knew, I could feel someone moving the blankets off me and I had a bit of a peep and seen it was Dalton, and I sort of-just … so surprised it was going on, he making me hard and playing with my penis, with his hand he was masturbating me.  I was lying on my back so he was going under the blanket."

41EF went on to describe the touching as,

"Over the boxers to start with and then he unbuttoned me and pulled my penis out.  I nudged him with my knee and he just kept persisting, and he was playing with himself while he was doing it to me, and then he pulled his pants down and put my penis in his anus.  His back was to me while he squatted over the bed."

42He stated that you were "going up and down on" his penis.

43Nothing was said during the incident.  He watched you return to your bedroom a short distance away.  The following morning EF told his father and his stepmother that Dalton had “touched” him.  He also said his underpants had been soiled.

Charge 24

44Charge 24 is a charge of indecent assault which related to the older brother of CD, GH.  He gave evidence that on one occasion he stayed overnight at your family home when you were living in Wangaratta.  He said he had drunk about eight cans of bourbon and coke during the night.

45He stated,

"I was a bit wasted.  I laid down on the lounge room floor, went to sleep.  I was just laying on the floor, sleeping on the floor.  Everyone else was sitting on the seats in the room passed out …  So I just fell asleep on the floor.  I felt somebody rubbing around behind my groin between my arse and my scrotum."

46He then described waking up and turning around and seeing you get up and run into your bedroom.  He said that he went and confronted you and told you he was “sick of his shit”.  GH was around about the age of 13 or 14 when this incident occurred.

Response to Allegations

47Turning to your response to these allegations.  When you were interviewed on two occasions by police in respect of these allegations you denied any criminal conduct and maintained that you had done nothing wrong.

48At trial you gave evidence asserting on oath that the answers in your records of interview were truthful and repeated your position you had not committed any of the offences alleged.

49Each of the complainants was cross-examined at trial with a view to demonstrating that their accounts were false.

Victim Impact

50Turning to the impact of your crimes.  Of your four victims only one, EF, made a victim impact statement.  He did not want that statement read aloud in court.

51In summary he felt that you had taken away his childhood and the opportunity for a happy life.  He described what you did to him as having damaged virtually every facet of his life.  His sleeping patterns, his appetite, his academic performance, his motivation to engage in sport, his confidence in pursuing social and intimate relationships and his work performance have all been badly affected.  He is still not coping well and describes his overall enjoyment of life as extremely low.

52Although the other three victims did not provide victim impact statements, I had the opportunity to observe each of them give evidence at trial.  They all impressed as bearing the psychological scars of your sexual abuse of them.  The difficulty they had in describing what you did to them was itself demonstrative of the impact of this offending.  AB particularly impressed as stoic yet deeply affected by his long experience of your abuse of him.

53Beyond what could be observed of the victims in the witness box, I am prepared to infer that each of them would have been damaged in a myriad of ways by what you did to them.

54It is important that you understand that the impact of what you did to these boys will be a significant consideration in the formulation of a just and appropriate sentence to impose upon you.

Personal circumstances

55Turning to your personal circumstances, you were born as I have said on 1 July 1966 and are now 52 years of age.  During the timeframe of the offending, you were aged between about 25 years of age and 36 years of age.  Although you will be sentenced on the basis that you have no prior convictions, I was told that you have been convicted of a relevant subsequent offence. I will describe that offence shortly.

56You were born in Euroa but your family moved to public housing in Richmond when you were still an infant.  You are the fourth of six children and none of your siblings have a criminal history.  Your father delivered meat to butchers locally and your mother worked at the Redhead Matches factory in Richmond.

57Your home life was unsettled because of your father’s drinking and violence.  He frequently assaulted your mother and sometimes you and your brothers and sisters.  You told your psychologist that you can recall your mother being hospitalised on a number of occasions after these incidents.

58Because of the violence, your mother left the family home and your father took you and the other children to live back in Euroa.  Ultimately your mother returned to live with the family but home-life remained unstable.

59You attended primary and secondary school in Euroa and describe yourself as being below average academically.  You received some remedial assistance.  Because you were viewed by your peers as being effeminate, you were bullied and often assaulted.  You left school just before your 15^th birthday and did not complete Year 9.  You commenced an apprenticeship at a local plant nursery and worked there for approximately three years.  Unfortunately you were not able to complete the apprenticeship through no fault of your own.  You went on to work at the local Coles supermarket and throughout your adult life you have worked in a variety of jobs in supermarkets, service stations and as a farmhand.  In your early 30s, you worked full-time serving take away food in a fish and chip shop.  Significantly for the last 12 years until the time of your remand you had worked full-time in a fish and chip shop in Benalla.

60It appears that you were exposed to sexual activity at a very early age through your older siblings.  From late primary school, you engaged in penetrative sex with other boys and from the age of 14 you would travel to Melbourne and engage in sex with older men in exchange for money.  Despite these experiences, you told your assessing psychologist that your primary sexual attraction in adulthood was towards adult women. You have had three long-term relationships with women with whom you have had children.

61Your first relationship ended when you were about 21 years of age.  There is a daughter of that relationship who is now the partner of one of your victims, CD.  Around 1989 - 1990, you met and formed a relationship with the mother of AB.  By the time AB was five years of age, you had commenced living with him, his mother and your daughter in Deer Park.  It is there that the offending first started.  During the timeframe of the indictment you had four children with AB’s mother, a daughter, a son in 1995 and twin sons born in 2001.

62In 2003, you committed an indecent act against your son who had been born in 1995.  He was about seven years of age at the time.  The offence involved you placing your hand down his pants and stroking his penis several times.  In January 2005 you were sentenced to six months' imprisonment in respect of that offence which was to be served by way of an intensive correction order.  It seems that your relationship with his mother ceased in the wake of the disclosure of that offending.

63You met your current partner in 2014.  She has a daughter from a previous relationship now aged five.  In May 2016 she gave birth to your son. In July 2014, you were convicted and fined $800 in relation to an assault upon your current partner.  Despite that incident, and your current predicament, she remains supportive of you.

64You have had some issues with substance abuse.  By the age of 18, you were a heavy cannabis user and that appears to be the case during this offending.  Your prior convictions largely reflect your dependence on cannabis with the exception of the offences of indecent act dealt with in 2005 and the assault on your current partner to which I have already referred.

References

65Ten personal references were relied upon on your plea.  They were from your current partner, your employer, other members of your family and friends.  Those references provide a different and much more positive insight into your character than was evident at trial.  Despite the authors of those references being well aware of the nature of your offending, they indicate that they are prepared to continue to trust and support you.  You are fortunate to have that support and I will take those references into account generally and particularly as bearing upon your prospects for rehabilitation.

Psychological Evidence

66Turning to the psychological evidence.  On your plea on 16 November 2018, Mr Turner, who appeared on your behalf, tendered a psychological report from Mr Guy Coffey, psychologist, of 6 November 2018.

67In your discussions with Mr Coffey you admitted sexually abusing these four boys.  You told him that you developed sexual feelings for the victims  to quote from Mr Coffey’s report,

"In the context of either family life, with respect to the abuse of the stepson, or family friendship."

68You maintained that your outings and camping trips with AB and CD were not pretexts contrived to abuse your victims.  You maintained that camping was something the boys insisted on.  They were keen to try alcohol and smoke cannabis, you said, and the sexual contact only emerged opportunistically.

69In attempting to explain your sexual attraction to your victims you told Mr Coffey that you experienced euphoria accompanied by an intense sense of urgency,

"I had to do it and I had to do it quickly."

70You said you,

"wanted to get it over, as if to expunge the desire."

71Referring to the early abuse of AB you stated,

"I asked AB to experiment doing the same things as I did (as a child)."

72You told Mr Coffey,

"I felt it was wrong, but I wanted to do it.  I don’t know why.  I can’t explain why."

73You acknowledged to Mr Coffey that you had offended against GH as alleged.  You said you could not recall offending against EF because you were so intoxicated.

74You denied the offending even though you knew you had offended as alleged.  You told the psychologist that you wanted to get away with it because you had stopped offending for a long time and wanted to live well with your new partner.

75As to your attitude towards the offending now, it is evident that you continue to rationalise what you did.

76To quote Mr Coffey at paragraph 52 at p.10 of his report,

"He made a number of statements indicating his views are unsettled and contradictory about a child's involvement in their abuse.  He said that, 'A child should be able to trust a parent or adult and I betrayed that'.  However he also made statements suggesting that he believed that the victims were interested in sexual contact which he appeared to interpret as partially excusatory of his actions. Although he conceded that his offending may have harmed the victims, he struggled to state that the offending was unambiguously injurious to the children.  He deflected questions about his plying the children with cannabis and alcohol saying that they insisted on consuming the substances.”

77You claim that you no longer have any sexual interest in children.

78Mr Coffey formed the view that you met the criteria for a Paedophilic Disorder together with alcohol and cannabis use disorders.

79Although you may have often been disinhibited by cannabis and alcohol when committing some of these offences, Mr Coffey believed that the cause of your offending was your paedophilic desires, which you chose to act upon.  He thought that whilst it is likely that you have become better at managing and suppressing your paedophilia,

"It is unlikely that this sexual interest, which was well established and repeatedly acted upon, has spontaneously remitted."

80Moreover you continue to hold the self-justificatory beliefs often seen among paedophilic offenders.

81You say you wish to commit yourself to treatment and that you are motivated to do so.

82Mr Turner relied on paragraph 72 of Mr Coffey’s report to argue that you should be regarded as a low to moderate risk of reoffending without treatment and supervision.

83Mr Coffey stated at paragraph 72 of his report,

"In my opinion, there is a low to moderate chance of reoffending without treatment and supervision.  In coming to this conclusion I have taken into account the risk factors identified by a structured assessment of risk of sexual violence.  Increasing the risk of recidivism are his repeated offending perpetrated over an extended period, his long history of substance abuse, his lack of complete insight into the reasons for the offending, his failure to seek assistance for his paraphilic sexual orientation, and his maintenance over things justifying beliefs and cognitive distortions. Set against these risk heightening variables are a number of factors that reduce the likelihood of Mr Johns reoffending.  The risk of recidivism is reduced by his age, the apparent cessation of offending for about fifteen years and the reduction of his substance abuse.  He is not mentally unwell and does not have an Antisocial Personality Disorder.  He has demonstrated an ability to maintain stable employment and to be a conscientious and valued employee.  He has – albeit belatedly and post-trial – admitted to the offending.  He appears to have at least inchoate remorse.  He has throughout his adult life pursued a sexual interest in adults, has the ability to maintain a relationship with a partner, and is currently within a committed relationship.  He has expressed a commitment to receive treatment in relation to his paedophilic interest and his offending.”

84I will return to Mr Turner’s submission as to your risk of recidivism shortly.

85Mr Turner also submitted that whilst you contested these charges, had the complainants cross-examined and gave evidence denying their accounts, you should still be sentenced on the basis of Mr Coffey’s view, that you have what he described as ‘at least inchoate remorse’.  He submitted that because you have now acknowledged your offending and have indicated that you no longer have a sexual interest in children, your prospects for rehabilitation should be seen as being reasonable.

86Miss MacDougall on behalf of the Crown suggested that your remorse was very little and very late.  Whilst you are not to be punished for running a trial, you should not have the benefit of being regarded as remorseful given that you subjected the complainants to cross-examination in which they were called liars, knowing that they were in fact truthful.  You then gave evidence denying the offences you knew you had committed.  She submitted that the issue of remorse should be treated as entirely neutral.

87Miss MacDougall also submitted that your assertion to the psychologist that the outings and camping trips were not pretexts for abuse, should be rejected.

88She otherwise submitted that the charges of which you have been found guilty represent serious examples of serious offences.

Findings

89Turning to my findings.  I accept Miss MacDougall’s submissions.  You will be sentenced on the basis that your offending comprises serious examples of serious offences, involving four victims occurring over approximately a decade.  Your moral culpability for all of this offending is of a high order.  Nor do you have the benefit of the substantial mitigation a plea of guilty would likely have attracted.

90AB was your step son.  You were entrusted with his care.  Over many years. you flagrantly abused that trust and in so doing I infer that you caused him immeasurable harm.  He was six when you first started abusing him and you continued to abuse him over the next six or seven years.  During those years you plied him with alcohol, with drugs and all sorts of inducements so that you could use him for your own sexual gratification.

91When he befriended CD you did the same thing to him.  You also used drugs, alcohol and other inducements to sexually exploit CD for your own selfish ends.

92Alcohol also figured in Charges 23 and 24 involving EF and GH.  Those assaults were each carried out when your victims were very intoxicated and very vulnerable.

93I am not persuaded that you are remorseful for what you did.  In evidence before me you denied this offending ever occurred.  In the months since trial it does not appear you have fundamentally changed your attitude.  The rationalisations and justifications you continue to put forward are not, in my view, consistent with genuine remorse.

94It may be somewhat encouraging that you are at last prepared to acknowledge that you committed these offences.  But that acknowledgement is, I accept, too little and too late.  I will treat the question of remorse as being neutral for the purpose of formulating sentence, as Miss MacDougall suggested.

95Moreover, having seen and heard all of the evidence given in what was a reasonably lengthy trial, I cannot accept your assertion that your arranging of the outings and the camping trips referred to in the evidence were not pretexts to facilitate your abuse.

96At an early stage in your offending against AB, you gave him alcohol and abused him.  The first incident at Green Lake [Charge 6] is one example.  Another is Charge 8 where you gave AB alcohol and cannabis when he was only seven or eight years of age so that you could get him to penetrate you anally.  You had by that stage already developed a pattern of behaviour where you would use substances to enable your sexual abuse.

97By the time your family had moved to Benalla, you were well aware that enticing the boys on camping trips with inducements of alcohol, cannabis and opportunities to do things they would otherwise not be allowed to do, provided you with a means to abuse those boys without the risk of detection.

98I am satisfied beyond reasonable doubt that you routinely contrived the outings and the camping trips in order to create opportunities to abuse these boys.

99As I indicated to counsel on the plea, I am not inclined to accept Mr Coffey’s analysis of your risk of sexual recidivism either.  That is so because an important consideration relied upon by Mr Coffey to reach that conclusion is your assertion to him that you have not offended for the last 15 years.

100It is certainly true that you have no relevant convictions after 2005.  But in light of the history of this proceeding I cannot be satisfied of any facts simply on the basis of your self-report.

101As I have made clear, you gave evidence on oath that you did not abuse these boys.  They were each cross-examined on the basis that they were lying.  The fact is you were lying.  In those circumstances, I am not prepared to accept your assertion that after 2005 you ceased offending.  I do not know what the truth of the matter might be, but I cannot accept what you say about it.

102That said, I am prepared to accept that you can now see that you need treatment. You have the support of quite a number of family and friends and I would expect that support will be of assistance to you in the coming years.  It is not always the case that offenders in your position have such support.  Nevertheless, I am unable to make any findings about your prospects for rehabilitation at this stage.  Whilst it is somewhat encouraging that you have at last acknowledged what you did to these boys.  It is also clear from Mr Coffey’s report that you have a long way to go in addressing the causes of your offending.

103In formulating sentence, I have had regard to the following cases among others:

·    DPP v Dalgliesh [2017] HCA 41; 349 ALR 37

·    DPP v DalglieshNo.2 [2017] VSCA 360;

·    Reid v The Queen (2014) 42 VR 295 and to the survey of authorities discussed therein;

·    Harlow v The Queen [2018] VSCA 234

·    Harmon v The Queen [2017] VSCA 167

·    DPP v Walsh [2018] 172

·    Carter v The Queen [2018] VSCA 88

104I have referred to these decisions for comparative purposes in that they may serve as yardsticks to illustrate rather than define, the possible range of sentences available and also to discern any relevant legal principles.

105In Reid at paragraph [83] and in Dalgliesh No.2 at paragraph [67] the Victorian Court of Appeal referred to what was said in R v Sposito, Unrep 8 June 1993, where the Court of Criminal Appeal highlighted how parent-child incest constitutes a most abhorrent abuse of trust, due to the inherent vulnerability of the young victims in such cases.

106In his judgment, Marks J (with whom Hampel and McDonald JJ agreed) stated:

"A society which fails to protect its children from sexual abuse by adults, particularly those entrusted with their care, is degenerate. The offence of incest is particularly erosive of human relations and casts doubt on the assumption that parents are natural trustees of the welfare of their children. … [incest] include[s] the exploitation by the stronger will of the adult of the weaker will of the child, the physical and psychological subordination of the child to the perverted indulgences of the adult, the gross breach of trust placed in the offender by the victim and the community, and the irreparable fundamental damage to the victim. … Another feature is that the resolve of the victim to resist the demands of the offender is weakened by the natural affection which the child has for his or her parent, and by reasons of other aspects of natural dependency.

…

"It is difficult to imagine conduct which is more evil than that of a father, or a person in the position of a father, who preys for his own sexual satisfaction on his own young child …"

107Those comments are apt to apply to your dealings with AB.  Indeed much of what was there said applies equally to CD, who in many respects became part of your family once he established his friendship with your stepson.  Overlaying those considerations are the aggravating circumstances of your use of alcohol, drugs and the lengths you went to arrange trips and outings to enable your sexual abuse.

108In so far as EF and GH were concerned it is their age and vulnerability which particularly aggravates your offending.

109Section 5 of the Sentencing Act 1991 (Vic) sets out the governing principles to be applied in formulating sentence and s.5(1) describes the purposes for which sentences may be imposed.

110In your case the relevant purposes to be emphasised in imposing your sentence are:

a.    To deter others who might be minded to engage in the sort of offending you engaged in;

b.    To deter you personally from committing offences of this kind;

c.    To protect the community in particular vulnerable children;

d.    To punish you to an extent which is just in all the circumstances and proportionate to your crimes; and

e.    To clearly denounce your what you did.

111I must also try to facilitate your rehabilitation to the extent that is possible but I should say that given the seriousness of this offending that must be a subsidiary consideration.

112One of the many factors I should have regard to under s.5(2) of the Sentencing Act is the applicable maximum penalty for each of your offences.  I have set those out in a chart which will form part of these sentencing remarks.  In essence they are for indecent act ten years maximum penalty; incest - 20 years; attempted incest - 20 years; sexual penetration of a child under 16 - 15 years; and indecent assault 10 years is the maximum penalty.

113I should explain that contrary to what was set out in the Summary of Prosecution Opening for Plea, I have proceeded on the basis that the applicable maximum penalty for incest was 20 years.  The relevant provision [s.44 of Vic Crimes Act 1958 (Vic)] was amended on 1 September 1997 to increase the maximum penalty from 20 years to 25 years. It follows the maximum penalty for Charges 3 and 4 must be 20 years, not 25 years. I have also treated Charges 10 and 12 as having a maximum penalty of 20 years, because that is the lower penalty within the timeframe alleged in those charges, being 5 April 1996 - 4 April 2000.

114During the course of the trial, a good deal of uncharged acts and other misconduct evidence was adduced in order that the charged conduct might be assessed in its proper context.  You are not to be sentenced for that conduct.  The charges before me are not ‘course of conduct’ charges or ‘representative’ charges.  The sentences I will therefore impose attach only to the specific instances charged.

115Finally I should indicate that I have endeavoured as best I can in formulating sentence to apply the principle of totality.

116Mr Johns, would you stand please?

117On Charge 1, indecent act with a child under 16, you will be convicted and sentenced to two years' imprisonment.

118On Charge 2, indecent act with a child under 16, you will be convicted and sentenced to two years' imprisonment.

119On Charge 3, incest, you will convicted and sentenced to four years and six months' imprisonment.

120On Charge 4, incest, you will convicted and sentenced to four years and six months' imprisonment.

121On Charge 6, indecent act with a child under 16, you will be convicted and sentenced to 18 months' imprisonment.

122On Charge 7, indecent act with a child under 16, you will be convicted and sentenced to 18 months' imprisonment.

123On Charge 8, attempted incest, you will be convicted and sentenced to six years and six months' imprisonment.

124On Charge 10, incest, you will convicted and sentenced to five years' imprisonment.

125On Charge 11, sexual penetration of a child under 16, you will convicted and sentenced to five years' imprisonment.

126On Charge 12, incest, you will convicted and sentenced to six years and six months' imprisonment.

127On Charge 15, indecent act with a child under 16, you will be convicted and sentenced to three years' imprisonment.

128On Charge 16, indecent act with a child under 16, you will be convicted and sentenced to three years' imprisonment.

129On Charge 18, attempted incest, you will be convicted and sentenced to six years and six months' imprisonment.

130On Charge 19, that is a charge of sexual penetration of a child under 16, you will be convicted and sentenced to four years' imprisonment.

131On Charge 20, sexual penetration of a child under 16, you will be convicted and sentenced to four years' imprisonment.

132On Charge 23, sexual penetration of a child under 16, you will be convicted and sentenced to six years' imprisonment.

133On Charge 24, indecent assault, you will be convicted and sentenced to 12 months' imprisonment.

134The sentenced imposed in respect of Charge 8 will be the base sentence.  That is a sentence of six years and six months.

135I will direct that six months of the sentence on Charge 1 be served cumulatively; six months on Charge 2 cumulatively; six months on Charge 2 cumulatively; six months on Charge 4 cumulatively; three months on Charge 6 cumulatively; three months on Charge 7 cumulatively; the sentence imposed on Charge 10 will be concurrent; six months of the sentence imposed on Charge 11 cumulatively; one year of the sentence imposed on Charge 12 to be served cumulatively; the sentence imposed on Charge 15 will be concurrent; the sentence imposed on Charge 16, six months of that sentence will be served cumulatively; on Charge 18, one year of that sentence will be served cumulatively; on Charge 19, six months of that sentence to be served cumulatively; on Charge 20, the sentence will be concurrent; on Charge 23, 18 months of the sentence imposed in respect of that charge will be served cumulatively; and on Charge 24, three months of the sentence imposed in respect of that charge will be served cumulatively.

136That renders a total effective sentence of 14 years and three months and I will fix a non-parole period of ten years and three months.

137I will declare that you have been sentenced as a Serious Sexual Offender on Charges 3 - 17.

138I will further declare pursuant to s.18 of the Sentencing Act that you have served 118 days by way of pre-sentence detention and I will cause that declaration to be noted in the records of the Court.

139I will note that, having been found guilty of seven Class 1 offences, five Class 2 offences and one Class 4 offence, you will be registered under the Sex Offenders Registration Act and that you will be required to report under that Act for the rest of your life.

Charge	Maximum penalty	Sentence	Cumulation
CHARGE 1 – Indecent act with a child under 16	10 years imprisonment	2 years	6 months
CHARGE 2 – Indecent act with a child under 16	10 years imprisonment	2 years	6 months
CHARGE 3 – Incest	20 years imprisonment	4 years 6 months	6 months
CHARGE 4 – Incest	20 years imprisonment	4 years 6 months	6 months
CHARGE 6 – Indecent act with a child under 16	10 years imprisonment	18 months	3 months
CHARGE 7 – Indecent act with a child under 16	10 years imprisonment	18 months	3 months
CHARGE 8 – Attempted incest	20 years imprisonment	6 years 6 months	Base Sentence
CHARGE 10 – Incest	20 years imprisonment	5 years
CHARGE 11 – Sexual penetration of a child under 16	15 years imprisonment	5 years	6 months
CHARGE 12 – Incest	20 years imprisonment	6 years 6 months	1 year
CHARGE 15 – Indecent act with a child under 16	10 years imprisonment	3 years
CHARGE 16 – Indecent act with a child under 16	10 years imprisonment	3 years	6 months
CHARGE 18 – Attempted incest	20 years imprisonment	6 years 6 months	1 year
CHARGE 19 – Sexual penetration of a child under 16	15 years imprisonment	4 years	6 months
CHARGE 20 – Sexual penetration of a child under 16	15 years imprisonment	4 years
CHARGE 23 – Sexual penetration of a child under 16	15 years imprisonment	6 years	18 months
CHARGE 24 – Indecent assault	10 years imprisonment	12 months	3 months
TOTAL EFFECTIVE SENTENCE		14 years 3 months
NON PAROLE PERIOD		10 years 3 months