Director of Public Prosecutions v Jones (a pseudonym)
[2024] VCC 457
•15 April 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RICHARD JONES (a pseudonym) |
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JUDGE: | His Honour Judge Trapnell | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 December 2023 | |
DATE OF SENTENCE: | 15 April 2024 | |
CASE MAY BE CITED AS: | DPP v JONES (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 457 | |
REASONS FOR SENTENCE
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Subject:Criminal law – Sentence
Catchwords: Sexual penetration of a child under the age of 12 – Conviction following six-day trial – Serious breach of trust – Victim 7 years of age – Standard sentence offence – General deterrence – Denunciation – Socially disadvantaged background – No remorse – Very high moral culpability – Guarded prospects for rehabilitation
Legislation Cited: Crimes Act 1958 – Sentencing Act 1991 - Sex Offenders Registration Act 2004
Cases Cited:Clarkson v The Queen (2011) 32 VR 361 – DPP v Dalgliesh (a pseudonym) [2016] VSCA 148 – Adamson v The Queen (2015) 47 VR – McPherson v The Queen [2021] VSCA 53 – Bugmy v The Queen (2013) 249 CLR 571 – Balshaw v The Queen [2021] VSCA 78 – Marrah v The Queen [2014] VSCA 119 – Newton v The King [2023] VSCA 22 – DPP v Herrmann [2021] VSCA 160 – Sabbatucci v The Queen [2021] VSCA 340
Sentence: 8 years’ imprisonment – 5 year non-parole period
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P Teo Mr M Young | Abbey Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr J Connolly | Tyler Tipping & Woods |
HIS HONOUR:
1Richard Jones,[1] following a six-day trial you were found guilty by a jury of one charge of sexual penetration of a child under the age of 12.[2] The maximum penalty for this offence is 25 years’ imprisonment.[3]
[1] A pseudonym used to protect the victim’s identity.
[2] Contrary to s 49A(1) of the Crimes Act 1958 (‘CA’)as amended by the Crimes Amendment (Sexual Offences) Act 2016.
[3] Pursuant to CA s 49A(2).
The facts
Background
2You were 31 years old at the time of the offending and resided in regional Victoria with the victim, whom I will call ‘Jane’,[4] her mother, whom I will call ‘Carol’,[5] her three children from a previous relationship and your three sons by Carol. Jane was seven years old at the time.
[4] A pseudonym used to protect the victim’s identity.
[5] A pseudonym used to protect the victim’s identity.
3In June 2018, you began a relationship with Carol. Between 2018 and 2022, you lived with Carol, Jane and the other five children. In December 2021, Carol ended her relationship with you, however, you continued to live at her home up until the time of the offending.
Circumstances of the offending
4On Saturday 23 April 2022, you left Carol’s home with your sons and Jane to stay with your mother, over the Greek Easter weekend, at her home in an outer Melbourne suburb.
5At some point during the weekend, you were in the bedroom where you usually slept when you stayed at your mother’s house. Jane was using her phone in another room. You asked Jane to come into the bedroom for a cuddle. Jane got into bed with you. There was nobody else in the room.
6You gave Jane a cuddle until she told you to stop because she was hot. You started to touch Jane’s vagina with your fingers, underneath her underwear. I directed the jury in accordance with the evidence as follows:
The prosecution rely on [Jane’s] evidence particularly in her VARE (Ex P1 - Qs 124–146) where [Jane] says Mr [Jones] started to touch her ‘private area’ with his hand underneath her underwear. She described Mr [Jones] ‘going around and around and then going side to side’ … in her ‘private area’ or her ‘ginie’ or her ‘fanny’… and ‘he went around and then side to side with that, like, that thing in the middle’ … he was using ‘his finger’. This lasted ‘like a minute’. And Mr [Jones] asked ‘Do you like it there?’ And [Jane] said ‘No’.
7Jane asked you to stop what you were doing a number of times. At first you did not stop. Later, you did stop for a short while, before continuing. While you were touching Jane, you asked her if she liked it. She replied ‘no’, that she did not like it and again asked you to stop. You asked Jane if she was telling the truth about whether she liked what you were doing or not. You told Jane not to tell anyone about what you had done to her. You said if she did not tell anyone, you would buy her ‘something special’.
8Jane gave evidence that when you were touching her vagina it gave her a strange sensation ‘like butterflies in the stomach’. You eventually stopped and then you and Jane went to sleep.
9I consider Jane was an honest and reliable witness and her evidence was accepted by the jury.
10Jane made her first complaint to Carol and Carol’s father on 30 April 2022. Jane said you touched the ‘round ball’ in her ‘ginie’, and it made her stomach feel ‘funny’. She said you stopped and started a few times and that she told you to stop. Jane told them you were rubbing ‘the bits’ and pointed at her vagina. She said you asked her if she liked it and that she told you no she didn’t like it. She said she told you it was wrong because you were the dad and she was the daughter and she was going to tell her mum. Jane said you told her if she doesn’t tell anyone you would buy her something.
11On 2 May 2022, Carol contacted local police and booked an appointment the following day for Jane to speak with them. The next day, Jane participated in a video and audio recorded statement.
12On 25 May 2022, you were interviewed by police. You confirmed you went to your mother’s house with your sons and Jane on the Greek Easter weekend and that on the Sunday night Jane was in your bed and you cuddled. You otherwise denied all allegations regarding the offending.
Victim impact
13No victim impact statement was tendered by the prosecution. Nonetheless, the Victorian Court of Appeal has made clear there is a presumption of harm to children who are exposed to premature sexual activity and that long lasting physical and psychological harm is to be assumed.[6]
[6] Clarkson v The Queen (2011) 32 VR 361, 371 [33] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA) (‘Clarkson’).
14I am mindful of the observations of the Victorian Court of Appeal in DPP v Dalgliesh (a pseudonym):[7]
… as this Court explained in Clarkson v The Queen,[8] the absolute prohibition on sexual activity with a child is ‘founded on a presumption of harm’. The significance of the violence and harm which such conduct entails cannot be overstated.
[7] [2016] VSCA 148 [47] (Maxwell ACJ, Redlich and Beach JJA) (‘Dalgliesh [No. 1]’).
[8] Clarkson 364 [3].
15Moreover, in Adamson v The Queen,[9] the Victorian Court of Appeal quoted with approval from the judgment of Baroness Hale in R v G[10] where Her Ladyship said:
More importantly, anyone who has practised in the family courts is only too well aware of the long term and serious harm, both physical and psychological, which premature sexual activity can do.
[9] (2015) 47 VR 268, 280 [18] (Warren CJ, Redlich and Weinberg JJA).
[10] [2009] 1 AC 92, 108–109 [48]–[49]. See also Clarkson 370–371 [32].
16The Victorian Court of Appeal has also reaffirmed the important role restorative justice plays in the criminal justice system. In Talbot (a pseudonym) v The Queen[11] the Court approved the statement of Vincent JA in DPP v Toomey[12] concerning the notion of social rehabilitation, where his Honour said:
It is well to bear in mind that the rehabilitation of the victim of sexual abuse may often be more difficult to achieve than that of the perpetrator. Frequently the damage will be profound and a long time will pass before it can be addressed at all. In the meantime, childhood will be destroyed, self esteem damaged, educational and career opportunities lost and the capacity to form and maintain relationships seriously impaired. The notion to which I have adverted underpins, I believe, such concepts as restorative justice, just punishment, the vindication of rights and the attribution of responsibility based on moral culpability. The vindication of the victim in cases of this kind, in particular, is profoundly important if the criminal justice system is to perform its role properly.[13]
[11] [2016] VSCA 218 [39] (Weinberg and Osborn JJA).
[12] [2006] VSCA 90.
[13] Ibid [22]. See also DPP v DDJ (2009) 22 VR 444, 454 [40] (Maxwell P, Vincent and Neave JJA) and Pitt (a pseudonym) v The Queen [2020] VSCA 73 [52] (Priest and Weinberg JJA).
Offence seriousness
17Sexual penetration of a child under the age of 12 is a very serious criminal offence carrying a maximum penalty of 25 years’ imprisonment, which is the highest fixed maximum penalty in the criminal calendar. This unequivocally indicates the seriousness with which the legislature, on behalf of the Victorian community, views this offence[14] and ‘reflects the community’s abhorrence of sexual crimes against children.’[15]
[14] See eg Nguyen v The Queen (2016) 311 FLR 289, 332 [146] (Redlich JA, Tate and Whelan JJA agreeing); Dalgliesh No.1 [126].
[15] Dalgliesh No.1 [78], [123], [126]; DPP v Charlie Dalgliesh (a pseudonym) (2017) 271 A Crim R 1, 16 [75] (Ferguson CJ, Weinberg and Whelan JJA) (‘Dalgliesh [No. 2]’).
18Sexual offending by adults against vulnerable children is a ‘most serious blight on society’.[16] The Victorian Court of Appeal, and its predecessor, have emphasised on numerous occasions the harm sexual offending against children causes to the innocent victims and the community at large.[17] As Hedigan AJA, adopting an earlier statement of Marks J in R v Sposito,[18] put it in R v MJ:[19] ‘A society which fails to protect its children from sexual abuse by adults, particularly those entrusted with their care, is degenerate.’[20]
[16] DPP (Vic) v Dalgliesh (a pseudonym) (2017) 262 CLR 428, 447 [57] (Kiefel CJ, Bell and Keane JJ) (‘Dalgliesh HCA’).
[17] See eg R v Wayland (unreported, Supreme Court of Victoria, Court of Criminal Appeal, Crockett, Southwell and Hampel JJ, 14 September 1992) 3–4 (Crockett J, Southwell and Hampel JJ agreeing); R v Sposito (unreported, Supreme Court of Victoria, Court of Criminal Appeal, Marks, Hampel and McDonald JJ, 8 June 1993) (‘Sposito’) 4–5 (Marks J, Hampel and McDonald JJ agreeing); R v Ware [1997] 1 VR 647, 653 (Hedigan AJA, Winneke P and Hayne JA agreeing); R v Wakime [1997] 1 VR 242, 244 (Winneke P, Hayne JA and Hedigan AJA agreeing) (‘Wakime’); R v WEF [1998] 2 VR 385, 387 (Winneke P, Charles JA and Hedigan AJA); DPP v VH (2004) 10 VR 234, 237–238 [11], (Callaway JA, Buchanan JA agreeing), 241 [23] (Eames JA); DPP (Vic) v OJA (2007) 172 A Crim R 181, 196–7 [33] (Nettle JA, Ashley and Redlich JJA agreeing) (‘OJA’); DPP v CPD (2009) 22 VR 533, 546–547[54]–[56] (Maxwell P, Redlich JA and Robson AJA); DDJ 453–54 [36]–[40] (Maxwell P, Vincent and Neave JJA); DPP v TDJ [2009] VSCA 317, [14]–[19] (Maxwell P and Neave JA); Reid (a pseudonym) v The Queen (2014) 42 VR 295, 310 [83] (Priest JA, Maxwell P and Whelan JA agreeing); Sutton (a pseudonym) v The Queen [2015] VSCA 251, [25]–[28] (Maxwell P and Redlich JA).
[18] Sposito 4.
[19] [2000] VSCA 66.
[20] Ibid [17]. See also DPP v Toomey [2006] VSCA 90 [18]–[19] (Vincent JA).
19Offending of this nature is regarded by the courts as extremely serious and usually calls for the imposition of condign punishment.[21] The courts have denounced offences of this nature as ‘inherently evil and depraved’.[22] They violate ‘the most basic norms of civilised behaviour, and [strike] at the heart of the value which our society places on the lives and wellbeing of each of its young persons.’[23]
[21] See eg Wakime 244; OJA 196–197 [33].
[22] Fichtner v The Queen [2019] VSCA 297 [67] (Maxwell P and Kaye JA).
[23] Ibid.
20Moreover, sexual penetration of a child under the age of 12 is a standard sentence offence.[24] The standard sentence fixed for the offence is imprisonment for 10 years.[25] Accordingly, in sentencing you for this offence, I must have regard to the standard sentence[26] which ‘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.’[27] It is a matter I must have regard to as one of the factors relevant to the sentence I impose on you.[28] However, the standard sentence is just another factor to consider, it is not determinative and does not interrupt the operation of my instinctive synthesis.[29] In fact, the relevant legislation specifically approves the instinctive synthesis approach to sentencing.[30] The standard sentence is to be treated as a ‘legislative guidepost’, as is the maximum penalty.[31]
[24] Sentencing Act 1991 (‘SA’) s 5A(1); CA s 49A(3).
[25] CA s 49A(3).
[26] SA s 5(2)(ab).
[27] SA s 5A(1)(b).
[28] SA s 5B(2)(a).
[29] Brown v The Queen (2019) 59 VR 462, 464 [4], (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA) (‘Brown’).
[30] SA s 5B(3)(b).
[31] Brown 464 [4], 479 [55]–[57] (applying Muldrock v The Queen (2011) 244 CLR 120, 132 [27] ((French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).
21Recently, the Victorian Court of Appeal in McPherson v The Queen,[32] in the context of a charge sexual penetration of a child aged under 12, observed:
Before concluding we should mention the difficult task with which sentencing judges are confronted when considering the standard sentence for this type of offending. The standard sentence is designed to represent a ‘mid-range’ example of this offence, however, the offence covers such a wide range of sexual misconduct as to make the notional ‘mid-range’ very difficult to identify. The misconduct can be penetration by finger, penis or tongue, or by an object. It can be momentary or protracted. It can be committed on all ages up to 12. The impact on the victim can be manageable or catastrophic. This is not to say the phrase is meaningless — it must be given its place in the sentencing calculus — but it is an intangible concept, and judges ought to be wary of affording it too much weight in the sentencing exercise. In particular, as this Court has said, judges must avoid engaging in ‘two-stage’ sentencing, whereby a vague, essentially intangible concept is used as a starting point from whence the sentence is adjusted upwards or downwards as the case dictates. It is a factor in the application of the intuitive synthesis, in the same way that the maximum sentence is. No more, no less.
[32] [2021] VSCA 53 (Priest and T Forrest JJA).
22In determining an appropriate sentence, I must take into account the objective gravity of your offending conduct as well as your moral culpability for it. As Redlich JA, with whom Chernov and Vincent JJA agreed, observed in DPP v Bright:[33]
The objective gravity of the offence must be assessed otherwise other relevant sentencing considerations, and in particular subjective factors, may be given undue weight in arriving at the sentence, rendering it unlikely that the sentence will be commensurate with the seriousness of the crime.[34]
[33] (2006) 163 A Crim R 538.
[34] Ibid 543 (citations omitted).
23Your offending conduct is truly abhorrent and involved a flagrant breach of the trust you owed to the young victim, who was, in effect, your former step-daughter. You also grossly betrayed the trust you owed to the victim’s mother, your former de facto partner, who placed her daughter into your care and protection during the Greek Easter weekend.
24You abandoned your responsibility to protect the victim who was young and vulnerable. Your offending is aggravated by the fact the victim was particularly young, being only seven years of age when you committed this vile act against her. Moreover, there was a significant disparity in age between you and your victim of 24 years, over three times more than her lifespan at that time. You told the victim not to tell anyone about what you had done. You attempted to induce her silence with a bribe, that you would buy her ‘something special’.
25I accept your counsel’s submission your offending was not accompanied by force or threats of force, there was no grooming of the victim and your offending was not protracted in nature, occurring in a single relatively short incident.
26Accepting the difficulties inherent in determining what constitutes a ‘mid-range’ example of this offence, I consider your offending conduct in relation to Charge 1, objectively viewed, to be somewhat less serious than a mid-range example of this type of offending, but nonetheless quite serious. Moreover, I consider your moral culpability to be very high.
27Generally, denunciation, general deterrence and just punishment must be given substantial weight in sentencing for this abhorrent crime. In you case, these sentencing principles must be moderated by reason of aspects of your personal circumstances discussed later.[35]
[35] See below [54]–[61].
Personal circumstances
28You were assessed on 13 December 2023 by Dr Aaron Cunningham, a psychologist engaged by your legal representatives. Dr Cunningham prepared a ‘Confidential Psychological Assessment’ report dated 13 December 2023, which was tendered at the plea hearing by your counsel.[36] Your personal history is summarised in that report.
General background
[36] Exhibit (‘Ex’) D1.
29You were born in September 1991 and are currently 32 years old. You were born in Victoria. Your mother raised you in Ballarat and Deer Park with an older half-brother and an older brother. Your older half-brother suffers from schizophrenia and depression. Your mother is his full-time carer. Your older brother is a drug addict.
30You reported to Dr Cunningham your mother ‘was a little bit difficult to talk to’ and was very particular about how things were done. You said your father and brother perpetrated family violence in the home. You told Dr Cunningham your father had been an aggressive alcoholic who had health issues. You were ‘fairly close’ with your father ‘at times’. He passed away approximately four years ago.
31You attended Deer Park North Primary School and Deer Park Secondary College. You were expelled from Year 9. You told Dr Cunningham you were bullied frequently and ‘got into lots of fights’.
32You completed three years of cabinet making at trade school and worked in that field for one year. You then worked as a panel beater for eighteen months and at another job for eight months. You have not had ‘a proper job’ for the past eight years. You told Dr Cunningham this was related to your mental health.
33You had been in an on-and-off relationship with Carol for five years. Your relationship with her had been your most stable relationship. You told Dr Cunningham at the time of your assessment the two of you were trying to work things out. At the plea hearing, your counsel advised me you were no longer together.
34You have not seen your children for one year. Prior to being remanded in custody you were living independently in shared accommodation.
Drug and alcohol history
35You told Dr Cunningham you smoked cannabis ‘years ago’ for ‘six to eight months’. You smoked because you were working night shifts and had difficulty sleeping.
36You have abused alcohol since secondary school. Prior to meeting Carol, you had significantly reduced your alcohol intake and would drink ‘a couple of cans once per month.’
Intellectual functioning
37You were administered the verbal comprehension and working memory indices of the WAIS-IV to screen your level of cognitive functioning. On the verbal comprehension index, you scored better than 13% of your age peers where 87% of your age peers would do better. On the working memory index, you performed better than 23% of your age peers, where 77% of your age peers would do better. Dr Cunningham opined your index scores were not consistent with an intellectual disability.
Risk of reoffending
38To assess your risk of sexual reoffending, Dr Cunningham administered the risk for sexual violence protocol. In his opinion you present with a moderate risk of sexual reoffending. He opines you present with numerous risk factors including physical coercion in sexual violence, psychological coercion in sexual violence, extreme minimisation and/or denial of sexual violence, problems with self-awareness and problems with intimate relationships.
39Dr Cunningham opines treating your mental health and maintaining stability in employment, accommodation and peer support would reduce your risk factors and improve your prospects for rehabilitation.
40In light of Dr Cunningham’s risk assessment, and the nature of your offending conduct, which you continue to deny, I consider I must give a moderate degree of weight to specific deterrence and protection of the community in sentencing you for this offence.
Mental health
41You are prescribed Avanza for depression and sodium valproate for mood stabilisation. In the past, you have been diagnosed with depression and a personality disorder at the Alfred Hospital, where you had asked to be placed into psychiatric care as your medication was not working.
42You reported to Dr Cunningham that you have problems with anger and regulating your emotions. You also told him you fall into ‘major depressed moods’ during which time you isolate from others. You have feelings of being dissociated where you forget what to say and become confused. You have suicidal ideation. You can still reason right from wrong in these states. Dr Cunningham noted that during the assessment you struggled with comprehension and memory.
43You reported experiencing an unstable and traumatic childhood. Your father was a violent alcoholic, one of your older brothers suffered with schizophrenia and your other older brother had drug addictions. You told Dr Cunningham you were repeatedly sexually abused by an undisclosed male when you were a child. You have lived with this abuse all of your life.
44Dr Cunningham opines you meet the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) criteria for a major depressive disorder. You present with a depressed mood, loss of interest in pleasurable activities, feelings of worthlessness, difficulty concentrating and thoughts of death.
45You reported severe depressive episodes that included dissociative symptoms. You have been treated in a psychiatric ward and prescribed significant mood stabilising medication. You have not engaged in ongoing psychological and psychiatric treatment.
46At present you have not suffered a severe depressive episode as a result of being incarcerated, however, Dr Cunningham considers you would benefit from ongoing treatment and monitoring to ensure your mental stability whilst incarcerated.
47Your counsel did not submit any of the Verdins principles[37] are engaged in your case.
Physical health
[37] See R v Verdins (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA).
48You have a staph infection on your arm that has persisted for several months and is being treated with anti-biotics. You are scheduled to have surgery for that condition at some future time. You also reported to Dr Cunningham having difficulty breathing, but there is no detail regarding this condition.
Prior and subsequent criminal history
49Your prior criminal history comprises five appearances between 2011 and 2016. On 11 March 2011, you appeared in the Magistrates’ Court in relation to two charges of reckless conduct endangering serious injury, one charge of careless driving and one charge of driving a motor vehicle causing loss of traction. You were convicted and sentenced to a Community Based Order for 12 months. You subsequently breached that order and on 2 March 2012 the order was confirmed.
50The remainder of your criminal history consists of minor driving related offences. You have no prior convictions or findings of guilt for sexual offences.
51You have a number of subsequent convictions. On 11 May 2023, you appeared in the Magistrates’ Court on one charge of drive whilst suspended, three charges of contravening a family violence interim intervention order and three charges of contravening a conduct condition of bail. On the charge of drive whilst suspended you were convicted and sentenced to a $600 fine. On the charges of contravening a family violence interim intervention order and contravening a conduct condition of bail you were convicted and sentenced to an aggregate fine of $1300.
52While subsequent offences cannot be taken into account in the same way as prior criminal history can, they bear upon my assessment of your character and shed light on your risk of recidivism, which is relevant to the weight I give to specific deterrence and protection of the community in sentencing you for the present offences. They are relevant also to my assessment of your prospects of rehabilitation.[38]
[38] See R v Rumpf [1998] VR 466, 475 (McGarvie J, Young CJ and Murray J agreeing); Alexandros v Birchell (2000) 31 MVR 307, 310–11 [15], [18] (Smith J); DPP v Rongonui (2007) 17 VR 571, 580 [37] (Maxwell P); Bellizia v R [2016] VSCA 21 [75], [77–78] (Santamaria JA); R v Pham [2003] VSCA 207 [12] (Vincent JA, Winneke P and Eames JA agreeing); Wilson v The Queen [2022] VSCA 2 [20] (Priest and Niall JJA).
Mitigating circumstances
53There is little that can be put on your behalf in mitigation of penalty. You stood your trial, which was your right, but it means you can receive no discount for pleading guilty. As your counsel fairly advised me, you continue to deny the offending. Accordingly, you lack insight into the reasons for your offending conduct and have demonstrated no remorse.
54Your counsel submitted because you come from a socially disadvantaged background and suffered childhood trauma and deprivation, the general principles adumbrated by the High Court of Australia in Bugmy v The Queen[39] are engaged in your case. I accept they are to some extent.
[39] (2013) 249 CLR 571 (‘Bugmy’).
55In Marrah v The Queen (‘Marrah’),[40] the Victorian Court of Appeal confirmed the relevance of a disadvantaged background as follows:
Circumstances of deprivation, abuse and other social disadvantage occurring during an offender’s formative years are more than matters of historical significance to the administration of justice. The effects of such social disadvantage do not generally diminish with the passage of time and are likely to have profound and lasting consequences. … Though they do not provide an excuse for offending behaviour, they must be given due weight in the sentencing calculus.[41]
[40] [2014] VSCA 119 (‘Marrah’).
[41] Marrah [16] (Redlich and Tate JJA) citing Bugmy 586–9 [24] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).
56Importantly, the Court held in Marrah that when sentencing an offender, the court should not consider that an ‘offender’s social disadvantage has the same mitigatory relevance for all of the purposes of punishment’.[42] Social disadvantage does not ‘diminish the need for the sentence to vindicate the dignity of a victim and reflect the community’s disapproval of the offending’.[43]
[42] Ibid.
[43] Ibid.
57When discussing the Bugmy principle in Newton v The King,[44] the Victorian Court of Appeal said:
Whether, and to what extent, social disadvantage warrants a reduction in moral culpability in a particular case falls to be assessed by reference to the nature and circumstances of the offence, the nature and severity of the disadvantage suffered and whether the effects of the disadvantage can be seen to be in any way explanatory of the offending.[45]
[44] [2023] VSCA 22 (‘Newton’).
[45] Newton [36]–[37] (Beach and Macaulay JJA).
58That Court further observed in DPP v Herrmann:[46]
The significance of the ‘general’ approach enunciated in Bugmy is that the relevance of deprivation to sentencing does not depend on proof of such a nexus. ... ‘the impact of disadvantage is complex, multilayered, non-linear and not easily “diagnosed” or measured’. The High Court’s recognition that serious childhood deprivation is likely to make an offender less morally culpable than ‘an offender whose formative years were not marred in that way’ reflects the principle of equal justice.[47]
[46] [2021] VSCA 160.
[47] Ibid [45] (Maxwell P, Kaye, Niall, T Forrest and Emerton JJA). See also Jawahiri v The Queen [2021] VSCA 287 [73(s)] (Priest and T Forrest JJA).
59In applying the Bugmy principle, I do not need to find the disadvantage you suffered was ‘profound’. In Sabbatucci v The Queen (‘Sabbatucci’),[48] the Victorian Court of Appeal said that the sentencer must evaluate whether the disadvantage warrants the offender being viewed as ‘less morally blameworthy’ than someone who commits the same offence but does not have the same disadvantaged or deprived background.[49] According to Sabbatucci, coming to this conclusion does not depend on being satisfied that the circumstances establish ‘profound disadvantage’ or ‘profound deprivation’ because in every case, ‘it will be a question of fact and degree’.[50]
[48] [2021] VSCA 340.
[49] Ibid [22] (Maxwell P and Emerton JJA).
[50] Ibid.
60In his report, Dr Cunningham details your self-report that you suffered an unstable and traumatic childhood, where you were exposed to violence in the home. Your father was a violent alcoholic. Moreover, you were repeatedly sexually abused as a child.
61Your counsel did not submit your childhood deprivation is causative of the present offending, thereby reducing your moral culpability. Nonetheless, these complex factors mean I must moderate to some extent the weight I would otherwise have given to general deterrence, denunciation and the punitive aspects of the sentence I impose on you. They also inform the weight I give to specific deterrence and protection of the community in your case.
62I accept you have been isolated and have had no contact with your children whilst in custody. However, I note this is a necessary consequence of your offending conduct which resulted in the Department of Families Fairness and Housing obtaining an intervention order against you, naming your children as the affected family members.
63Given the nature and seriousness of your offending conduct, your risk of sexual reoffending, and your lack of insight, in particular, I can only adopt a guarded approach to your prospects of rehabilitation. Much will depend on how you respond to treatment and the community supports put in place on your release from custody.
Application of sentencing principles
64I have had regard to current sentencing practice in relation to the charge of sexual penetration of a child under the age of 12 as informed by the decisions of the High Court of Australia in R v Kilic[51] and DPP (Vic) v Dalgliesh (a pseudonym)[52] and the Victorian Court of Appeal decisions in DPP v Zhuang[53] and DPP (Cth) v Thomas.[54]
[51] (2016) 259 CLR 256, 266–8 [21]–[25] (Bell, Gageler, Keane, Nettle and Gordon JJ).
[52] Dalgleish HCA.
[53] (2015) 250 A Crim R 282, 292 [30]–[31] (Redlich, Priest and Beach JJA). See also Williams (a pseudonym) v The Queen [2021] VSCA 35 [21]–[[25] (Priest and Kyrou JJA) (‘Williams’).
[54] (2016) 53 VR 546, 606–609 [173]–[183] (Redlich, Santamaria and McLeish JJA). See also Williams (a pseudonym) v The Queen [2021] VSCA 35 [21]–[25] (Priest and Kyrou JJA); Russo v The Queen [2021] VSCA 244 [53]–[56] (Emerton JA, Priest JA agreeing).
65I am precluded by s 5B(2)(b) of the Sentencing Act 1991 (‘the Act’) from taking into account sentencing practices which predate the introduction of the standard sentencing regime on 1 February 2018. I have had particular regard to two reasonably comparable recent cases — McPherson v The Queen[55] and DPP v Coleman (a pseudonym).[56]
[55] [2021] VSCA 53 (Priest and T Forrest JJA).
[56] [2023] VCC 926 (Judge O’Connell)
66While current sentencing practice under the standard sentence regime is relevant to the sentences I impose on you, it is only one of a number of sentencing considerations I must take into account in imposing a just sentence in your case.[57]
[57] See Dalgliesh HCA 450 [68] (Kiefel CJ, Bell and Keane JJ), 453 [82] (Gageler and Gordon JJ).
67Moreover, it is always difficult to gauge more than a general yardstick from so-called ‘comparable cases’, given the wide range of offending conduct that can constitute this offence and the myriad of personal circumstances pertaining to individual offenders. Nonetheless, to the extent I have been able to gain any assistance from so-called ‘comparable cases’, I have sought to do so in your case.
68Sexual penetration of a child under the age of 12 is a ‘Category 1’ offence as defined in the Act.[58] Accordingly, an immediate custodial sentence is mandatory in this case. It was not suggested that anything other than a sentence of imprisonment with a non-parole period fixed is called for in this case.
[58] See SA s 3(1) definition of ‘category 1 offence’ paragraph (f).
69The basic purposes for which a court may impose a sentence are just punishment, deterrence – both specific and general, rehabilitation, denunciation, and protection of the community. In sentencing you, I must have regard to a range of factors, such as the seriousness of the offence, your culpability for it, the impact of the offence on the victim, and your personal circumstances.
70I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, so far as is possible, you are rehabilitated and reintegrated into society.
71Denunciation, general deterrence and just punishment must be given significant weight in sentencing you for these offences, moderated to some extent by the circumstances of your deprived upbringing. Moreover, I consider protection of the community and specific deterrence must be given some weight, moderated likewise. Finally, as I observed earlier, I assess your prospects for rehabilitation as being guarded.
72In the present circumstances, Charge 1 is a Class 1 offence for the purposes of the Sex Offenders Registration Act 2004 (‘SORA’).[59] Pursuant to s 6 and 34(1)(b)(i) of SORA, you will be required to comply with the reporting requirements under that Act for a period of 15 years.
[59] Under Sex Offenders Registration Act 2004 (‘SORA’) s 3 and Schedule 1, clause 1.
Stand up Mr Jones
On Charge 1 (sexual penetration of a child under the age of 12) you are convicted and sentenced to imprisonment for eight years.
I am required to state the reasons for imposing the sentence I have on Charge 1.[60] They are contained in these reasons for sentence. I am also required to explain how that sentence relates to the standard sentence of ten years’ imprisonment.[61] The sentence imposed on Charge 1 is two years less than the standard sentence for that offence.
[60] See SA s 5B(4)(a).
[61] See SA s 5B(5).
I order you serve a minimum of five years’ imprisonment before being eligible for parole.
I declare 523 days (not including this day) as the period of pre-sentence detention to be reckoned as already served under this sentence and I direct the fact that declaration was made, and its details, be noted in the records of the court.
Pursuant to the provisions of the Sex Offenders Registration Act 2004, I order you comply with the reporting provisions of that Act for 15 years.
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