Director of Public Prosecutions v King

[2019] VCC 1905

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-01426

Indictment No: K10135105

DIRECTOR OF PUBLIC PROSECUTIONS

v

DARRYL KING

---

JUDGE:	HIS HONOUR JUDGE TINNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	13 November 2019
DATE OF SENTENCE:	15 November 2019
CASE MAY BE CITED AS:	DPP v KING
MEDIUM NEUTRAL CITATION:	[2019] VCC 1905

REASONS FOR SENTENCE

---

Subject:  indecent assault x 2. Offending in 1980 as a 19 year old. 12 year old victim. Guilty plea. Relevant subsequent offending as a 33 year old man.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr N. Donaghy	Office of Public Prosecutions
For the Accused	Mr D. Hannan	Armstrong Legal

HIS HONOUR: 

1       Daryl King, you have pleaded guilty to two charges of indecent assault. The maximum penalty is five years’ imprisonment.  That might seem a low maximum. That is because it is. I must apply the maximum penalty as it was at the time these offences were committed back in 1980.

2       You were born on 30 June 1960 and are now 59 years of age. You have no prior criminal history but you have some subsequent history before the courts. It is plainly relevant to my task.

3       This matter was opened to me on Wednesday of this week by Mr Teo who appeared on behalf of the Director of Public Prosecutions of this State.  The prosecutor opened in accordance with a written amended plea opening that was dated 6 November 2019. Your counsel, Mr Hannan, told me that it was an agreed statement. In those circumstances it is unnecessary to provide the full detail of the sentencing facts in these my reasons.  I will not stray beyond that agreed statement.

4       You do not need me to tell you that this was serious offending causing significant adverse impact upon your victim at the time and since. That is all conceded on your behalf by Mr Hannan. Nor do you need me to tell you that you behaved quite terribly towards your young victim all those years ago. She was just a young girl at the time. She was born on … and was only 12 years of age. You were 19 approaching 20. So whilst these events occurred a long time ago and you were just a young man then, you were quite old enough to know that what you were doing was seriously wrong and a crime. The child, for that is what she was, who you offended against was so drunk she could scarcely walk and though you were not instrumental in getting her drunk, you knew she was drunk. She was in her school uniform. You suggested that you, she and another young boy go for a walk to the beach to sober up. You left from your house and that was close to her house across the road. As the boy had sex with her on the beach you were telling her “it’s alright, it's alright”. Of course it was not alright at all. You began to kiss her on the mouth pushing your tongue into her mouth as your young offsider was doing what he was doing. That kissing in that context is the conduct the subject of Charge 1 on the indictment. That act finished and the three of you then returned to your home. Your victim was upset. She was crying. You put her in your car and at one point you told the boy to get some fish and chips. You were in the vicinity of her house but you decided to leave. It was a dreadful choice that you made, but that is what it was. It was a choice. Your choice. You then drove and parked the car near a beach. You walked her to some grass behind some beach houses and lay her down and penetrated her vagina with your finger, telling her ‘this is what you have been wanting all night’. She felt pain during that sexual act.

5       She reported these acts to the police many, many years later in April 2015. There was much to investigate given the breadth of her statement running as it did to some 48 pages. Your conduct occupied but a small portion of that statement. You were arrested in January 2018.

6       You were interviewed by the police on 10 January of that year. You were charged about a year later as there were further investigations that were required and it was not a simple investigation. You made some admissions in the interview to knowing the girl at the time and having some memory of an occasion where you, the girl and the other boy walked to the beach. Initially you said nothing had happened but later you agreed that you had kissed her and perhaps that happened as the boy was having sex. You were not able to remember that, you said, but you conceded that that may have happened. You denied any other act.

Victim impact statement.

7       There is a victim impact statement here.  Of course I take into account the impact of these crimes as I am required to.  I suppose I could say no more in that respect and then move on to deal with the matters that have been raised on your behalf.  But why should I do that?  This is not all about you. This represents the only opportunity that your victim will ever have to provide information to the court about the impact of your crimes.  These sentencing remarks will be full of matters dealing with your own position, and that is as it must be because I am sentencing you.  But I am sentencing you for the serious crimes that you have committed upon her when she was a young girl.  So I will say just a little bit more about the impact here. I am not going to descend to the full detail of what is within the impact statement. I have read it again since the plea the other day. The impact statement, and you have read it, makes for sad reading though I am pleased to see some very positive statements about the level of support that she has experienced from her husband and family as well as a sense of happiness that she has been able to actually speak out after all these years. Your victim has been deeply affected by your conduct. She felt scared and frightened at the time of the acts. She was worried she would get into trouble if she told someone about what had happened as she had not gone straight home after school and was worried about that. She is left with a sense of what she has lost. She feels that in a way she lost out on being a teenager, keeping this conduct to herself and having a sense of growing up perhaps too quickly. Her life changed and not for the better.  No doubt she wonders how her life would have panned out without this conduct and she will never know. Your conduct was the starting point in her life for a large number of other sexual acts committed by a number of other men over very many years. She describes many abusive relationships. You are not responsible for any of those other acts or their impact. No doubt it is terribly difficult for her to disentangle the separate impacts of separate conduct by you and others but make no mistake about it, she has very sad thoughts thinking back to this day. Your crimes were committed upon her as a 12 year old girl and I have no doubt at all that they have had a very deep and lasting impact upon her as that impact statement makes so plain. I take that impact, that is the impact of your crimes, into account as I must as a matter of law.

In Mitigation

8       Mr Hannan conducted an excellent plea on your behalf.  He said virtually everything that could be said on your behalf. He had prepared a very sensible written outline marked as Exhibit 1 on the plea. He relied upon a number of work and other personal references marked as a bundle, Exhibit 2. He took me to your family background in some detail. He made submissions as to the relative seriousness of the offences and the weight that he said should be given to the various purposes of sentencing. He made submissions as to your prospects of rehabilitation.

9       In mitigation, he relied mainly upon:  

·    Your relatively early guilty plea;

·    The presence of remorse;

·    Your youth at the time

·    The absence of any prior criminal history and the existence of only that one subsequent appearance back in 1994;

·    The delay since these events and/or the events in 1994 and your ongoing rehabilitation since then;

10     Mr Hannan argued that it would be open to impose a community corrections order in this case or failing that to sentence you to a term of imprisonment and to suspend that sentence in its entirety.

Prosecution

11     Mr Teo who appeared on the plea for the Director of Public Prosecutions of this State argued that it would be open to impose a term of imprisonment and wholly suspend such a sentence owing to your youth at the time of the offences and the passage of time since. Now I was told that the victim was comfortable enough with the prosecution submission as to sentence though would have favoured a disposition with some treatment requirements. In any event, I made that enquiry as I had a sense from the impact statement of her deriving significant benefit from the very process of coming forward and making the complaint and having you acknowledge your guilt. As to counsel’s submissions, that is all they are, they are arguments made to the court. I do not ignore them but of course I am not bound to accept submissions made by either counsel. I have to exercise my own sentencing discretion in this case. I have sent enough people to prison in circumstances whether neither side have said it had to happen.  That is because I am exercising my own discretion. Nor is it any way decisive that a victim expresses a certain view.  I have to reach my own view.

Background

12     I turn then to your background and do so only briefly as I have no reason to doubt what I have been told about you by your own counsel.  It really has nothing to do with this offending if I may say so. You are 59 years of age now, born on 30 June 1960.

13     There were some challenges in your late teens and as you were growing up even before then, with ill parents. You never knew your actual father. You were brought up by your mother and your stepfather.  They both died within a few years of the offence date, your mother in 1983, your father in approximately 1985.

14     You had been brought up in a variety of locations in country Victoria as your stepfather was chasing work in various timber mills. You left school at a very young age. You were only 15 and already at that stage your father was experiencing serious health issues. He had stomach cancer. So you had to leave school.  You then had to work and you found employment easily enough. Over the years you have worked mainly in what were described as relatively low skilled positions, as a labourer or driver or in other menial type occupations. You have had a very good employment record. You currently work as a carpet cutter with an understanding employer. There is a reference from a person you have met through your employer. Also one from someone who works with you. You are a married man and there is a strong reference indeed from your wife, Teresa. She has known you from four years before your marriage back in 1993. She brought one daughter to that relationship. You had a child yourself already, a son, from a much earlier relationship in the early 1980’s and together you and Teresa had one son, Shaun. He is in his late 20’s and is a butcher and still lives at home. He has children. You have very little if any contact with your stepdaughter or your first son. I do not know why.

15     I was told that you have had no alcohol or drug issues but the sentencing remarks of the County Court Judge, who sentenced you in 1994, suggest otherwise in relation to alcohol in the past. You have had a number of injuries in accidents that I was told about and you had thyroid cancer which spread into the lymph nodes in 2002. Your thyroid was removed and you have to have regular scans. You also had and continue to have issues with both knees.

16     You are living in your own home though there is still a modest mortgage in favour of the bank. Loss of your liberty and hence loss of employment and your income would of course place great pressure on your wife who works only part time. That is not a matter of any importance to my task at all I am afraid. It is very common indeed for the imprisonment of an offender to seriously impact upon those who are left behind in the community. It is only in the rarest cases that it can actually be taken into account and this is certainly not one of those rare or exceptional cases.

17     You have that single subsequent appearance back in November of 1994. The sentencing remarks do not go into great detail, how could they, they are only two and a half pages in length. That fact and what is contained within those sentencing remarks demonstrate how far we have come in 25 years if I may say so. Whatever the judge may have said, it is very obvious that that was serious offending relating as it did to two charges of sexual penetration (digital penetration) of a child under the age of 10. The offending occurred on two occasions, weeks apart in April 1994.  By that stage you were 33 years old. I was told that the child was nine years of age, a child of a family friend. One act occurred in her own bed at her home during a barbeque which you had attended, the other occurred under your own roof when the child was sleeping over at your house. You were by that stage a married man. You received a nine month term of imprisonment in relation to each running concurrently and that was wholly suspended. There has been nothing alleged against you since. Despite those convictions in 1994, there are the various references placed before me which speak of the conduct that I am dealing with as being out of character.

18     I turn then to consider the various matters that have been raised on your behalf.

Guilty plea

19     I turn firstly to your plea of guilty. You have pleaded guilty and you have done that in a setting where this was a word-on-word case, as most historical sexual offence allegations are.  You could have chanced your arm at trial. Many do and frankly, enough of those succeed when there is a long passage of time between the alleged offence and the trial.  So it is actually greatly to your credit that you chose not to adopt that course.

20     You pleaded on the day of the committal but critically this was before your victim was actually called as a witness. The committal did not proceed. There was also one other charge laid which did not proceed and a different factual setting alleged as well. So I judge it to be an early enough plea in the setting here.

21     Your victim has been spared the experience of being called as a witness and being cross-examined and that is important. Being cross-examined can still be a distressing experience and that is so despite all of the alternative procedures that we now have in place in an endeavor to make the giving of evidence easier. It is still not easy. From my observations, it is still often a deeply upsetting event for a complainant to give evidence in a criminal trial. That has been totally avoided by your guilty plea. Incidentally of course by your plea, you also vindicate her completely. You admit what she has always known; that you indecently assaulted her when she was a girl. You admit that she is telling the truth.  Hopefully that will assist her also in some small measure.

22     Your plea then is highly valuable and I must reward you for it. You have in these ways facilitated the course of justice. You have taken responsibility for your offending which occurred all those years ago.  Other witnesses, not just the complainant, other witnesses have also been spared the experience of coming to this court. The community has been saved the time, cost and effort associated with the conduct of a trial in this court or a committal hearing in the Magistrates' Court. I take these various matters into account in mitigation. I also take into account the extent of your co-operation with the police. You made at least some admissions and that is also to your credit.

Remorse

23     Your counsel argues that you have remorse. You have pleaded guilty in relation to these historical allegations. As I have said a moment ago, you could have chanced your arm and run a trial and many do just that. You did not wish to do that. Your counsel explained why. You were simply not prepared to have him stand in a court and call her a liar. That actually says a lot about the person that you are now. You were not comfortable putting her into the witness box and challenging her. You knew what had happened and you were prepared to admit and to be held accountable for your conduct. You made some admissions and pleaded guilty at that early stage. I am confident that you are sorry for what you did. Unlike many who inhabit the dock, I find that you are actually remorseful. I take that into account in your favour. It is important.

Delay

24     These offences occurred many years ago so I am dealing now with the aspect of delay that was placed before me on the plea.  There is nothing unusual about delay.  It is just all too common for the courts to see lengthy delays.  That is because it is very common for victims not to be in a position to actually complain.   It is all part of the dynamics of this sort of conduct. Here your victim was a 12 year old girl. You were a 19 year old man.  I mean you were driving a car at the time of these events, so there was that disparity in age. She did not feel able to disclose your conduct close to the event. She was a child and as a child she was even worried about things such as being late home and the reaction of her parents to that fact. She might have been ashamed. She might have been embarrassed. She might have been concerned about her parent’s reaction. She may have worried as to whether she would be believed or worried about what might happen to her or even worried about what might happen to you. There would be countless reasons why she was not then able to disclose. The fact is she was not able to and there is nothing unusual about that. We have then a sizeable delay. The problem is, and it is a problem, you have committed serious crimes in that period and they were well removed from your teenage years. You were 33 years of age and sexually penetrated a nine year old girl in 1994.  Other than that other offending which I have been told about, there has of course been nothing since and there is much material touching upon the life you have been leading and your apparent rehabilitation since 1994.

25     As I have said though, delay in sexual abuse cases is not unusual.  It is the norm actually.  It does not confer some automatic right for reduction of sentence.  Here I am sure that presumably you hoped that this day of reckoning would never arrive.  You probably hoped that your conduct would never be reported or investigated. Then of course it was reported, it was investigated and you had the police at your door.

26     Undoubtedly, there is a disadvantage to you with these matters being dealt with so long after the event.  The same though can be said for your victim. She has waited a long time for vindication. She has lived with the effects of your crimes, your unacknowledged crimes, throughout her life.

27     The passage of time and the lack of re-offence by you since 1994 must bear upon your prospects of rehabilitation, upon the degree of likelihood of reoffending and the extent to which the court must give weight to denunciation, specific deterrence, community protection and even to some extent general deterrence. It would of course be a much easier task to determine the appropriate sentence in this case had you been offence free since 1980. The 1994 crimes are a worry. They are unexplained and they cannot be put down to being ‘young and stupid.’

28     The delay cannot be allowed to dominate my task.  There is nothing in the delay that has changed the seriousness of this offending or its deep impact.  It is of course one consideration and one which I think does permit some sensible moderation of some of the purposes of sentencing including denunciation, community protection and specific and general deterrence.  But this is still serious offending as you knew then and as you know now.  I do by the way also take into account the sizeable delay between the report to police and the interview. Then the gap between interview and charge date. As I have said, this was a complex investigation. In that later period after the interview you have been waiting for the blow to fall which is never easy. You now fall to be sentenced approximately two years after the interview was conducted in January of 2018.

Youth at time

29     I turn then to your youth at the time.  I have already mentioned this to some extent when dealing with the aspects of delay. Of course you were young at the time. You were at that time a youthful first offender. That cannot be ignored. I cannot look back at you as though you were a mature grown man at the time of these acts. You were not. You were just 19 and plainly the offending was quite opportunistic and relatively spontaneous. There was an oddness to it as you embarked upon the earlier conduct in the presence of your girlfriend's brother. The law accepts that there is mitigatory value to be found in youth. There is some reduction in your culpability owing to your age at the time. Your counsel referred to the principles in cases dealing with the sentencing of young offenders, for instance the well-known decision of R v Mills [1998] 4 VR 235. Of course many of the principles as to the sentencing of a youthful offender have no currency in this case. I am not sentencing a youthful offender. I am not concerned as to the corrupting influences exerted by adult prison upon the development of a young man or that young man's prospects of rehabilitation. That is not the position here. You are now in your late 50’s but it is critical that I not lose sight of your age at the time of this offending or the passage of time since. There is that reduction in your culpability arising from your age. I do take that into account. You also by virtue of the delay have of course lost the ability for any consideration to be given to a youth justice detention type disposition. That sort of penalty can only be imposed on a person under the age of 21, so I take that into account as well. Your age at the time and the delay since and the evidence touching upon your ongoing rehabilitation must lead to moderation of some of the other sentencing purposes as I mentioned a moment ago.

Rehabilitation

30     I turn then to your prospects of rehabilitation. Your counsel by reference to all that has occurred in your life over the last 25 years was suggesting that you have at least good prospects of rehabilitation, that in reality you were on the road to rehabilitation. He relied upon the many positive references. There was the good work history, the fact that you had gone on to raise a family and not offend for close to 25 years. He argued that this offending back in 1980 was out of character. Critically you pleaded guilty and were remorseful for what you had done then.

31     The problem of course is the 1994 offending. That was not some minor blemish. It was serious sexual offending on two occasions by a person who by then was a mature adult, not by some youthful or immature 19 year old. It is one thing to have this conduct occurring when you were 19 all those years ago, but the commission of those serious offences 14 years later against a nine year old girl causes me to have some real concerns. There is just no explanation of that offending at all. The fact of your having alcohol on board simply cannot explain it and your counsel accepts that. So what does explain it? There is nothing. There is that vacuum in the evidence. The glowing references that are placed before me then really must be read in light of this full history of which I am aware but of which some of the authors must be ignorant. Now I am not for one moment suggesting that they are false references or are to be somehow ignored. Of course they are not. Those authors I am sure are ‘calling it as they see it’ but most of those authors surely have no knowledge of the 1994 acts. Your wife does. So then how out of character was this offending? What am I really to make about the claim of rehabilitation? You committed the serious sexual acts against a younger victim many, many years after you had committed these acts against this 12 year old victim, and those later acts occurred in 1994.

32 Still it must be said that is 25 years ago and with nothing alleged since. As best I can judge and I do not pretend that it is an easy task in this case, I believe that you have at least a relatively low risk of re-offending in this way again into the future. There will be the potential glare of publicity attaching to this matter and the knowledge of others as to what you have done. There will be the impediments raised by your lifetime registration under the Sex Offender Registration Act and the sentence that I will soon pass will also I am sure serve to deter you to some extent. Ultimately, having considered these various matters, I believe that you have good enough prospects of rehabilitation. That really is to say you have walked along that path to rehabilitation for many years. It is 25 years since the 1994 offending and 39 years since the matters for which I must pass sentence. I cannot just ignore that fact.

General remarks

33     I now make some general remarks. I have to take into account the nature and the gravity of the offences.  Plainly these are serious offences, the second charge in particular, and that is conceded. You were offending against a 12 year old girl, and one who was clearly significantly affected by alcohol. She was pliable and was marched here and there. You knew she was child and one under the age of 16. She lived near your house and she was in school uniform. You drove her from a position close to her own home, the sanctuary of her own home, to the site of the act the subject of Charge 2 and that act was a high level physical act in terms of the crime of indecent assault that after all could cover at that stage all manner of conduct ranging from a touching on the outside of the clothing right up to physical penetration. This act involved actual penetration of her vagina in a public place. Many indecent assaults, as I say, back in that day would fall well short of that conduct.

34     The crimes have had significant impact. I do accept they were opportunistic and very little considered by you. As I say, you were only 19 and so there is that reduction in your culpability, but plainly you would have known that what you were doing was seriously wrong and criminal. I am satisfied of that beyond reasonable doubt.

35     I have then the sizeable delay since and your efforts in living a decent law abiding life at least since 1994, if not before.

36     Sentencing always involves the balancing of a number of purposes or principles.  I have to take into account your prospects of rehabilitation.  That is one of the purposes of sentencing.  As I have said, I believe they are good.

37     I must consider the need for specific deterrence, that is the need to deter you from committing crimes into the future.  You have been arrested, you have been interviewed in January 2018 and charged about a year later and you have pleaded guilty at an early stage.  You demonstrate real remorse.  You have those good prospects of rehabilitation. There is though the issue of the subsequent crimes and the plea as your counsel conceded would be a much easier one to conduct without that later offending. However I believe that it is likely that specific deterrence has already been achieved to a degree here.  I believe it is open to me to moderate the weight to be given to punishment, denunciation, specific and general deterrence, as well as to community protection in this case. That is so owing to your age at the time of the offending, the delay and the conclusions I have reached as to the relatively low risk of re-offence and your good prospects of rehabilitation.  So I moderate those purposes owing to the matters discussed in Court of Appeal decisions such as R v Sherritt, [2015] VSCA 1 (para 33-35) and PJB [2007] VSCA 242. Those cases and others cited within them make plain the complexities of the sentencing task when a court is dealing with an offender many years after the commission of offences. It is more complex still when the offences were committed as a child or as a youthful offender and were followed then by many years of rehabilitation in the lead in to the sentencing hearing. Here of course you were not a child, you were an adult and you have that disturbing serious subsequent conviction as a bit of a blot on the landscape.

38          I have to denounce your conduct and that is so despite your age at the time and despite the passage of time. What a terrible thing, what a terrible thing to do to a young and vulnerable girl as you did.

39          You should be ashamed of yourself and I think that you actually are.

40          I must also punish you, but must do that justly and proportionately. That is the requirement here.

41          Though moderated to a degree, general deterrence, that is the need to deter other people, is still a significant enough purpose of sentencing in a case such as this. Sexual offences against children are abhorrent. They must be actively and strongly discouraged by the sentences imposed in these courts.  

42     We as judges must strive to deter others from committing offences such as these.  

Current sentencing practice

43     I pay regard to current sentencing practices. It is not a single, controlling factor.  It is just one matter I have to have regard to. That is, sentencing practices as of today’s date. Immediately this presents a real difficulty. Indecent assault no longer exists on the statute book and it has not for many years. It was replaced very many years ago by the crime of indecent act and then later that crime was replaced by a charge of sexual assault. For a long time for those other more recent offences, there has been an increased maximum penalty of 10 years. Of course that increase in maximum penalty does not apply to you, so any sentences imposed for that later style of offence would be to some extent influenced by the maximum penalty because the maximum is something a court must take into account. So those cases where there is a higher maximum penalty provide no guidance at all. It is more complex even that that. Back at the time of these acts committed by you in 1980, the law badged up that sort of conduct involving digital penetration as an indecent assault. At that point on the Statute book there were charges of carnal knowledge but they only applied in the setting of penile/vaginal penetration. Conduct that fell shy of that, even though penetrative, was embraced by the offence of indecent assault. So the offence of indecent assault could embrace a touching on the outside of the clothing right up to penetrative acts as long as they were not penile/vaginal penetration of a girl. That happily all changed very many years ago. Crimes of sexual penetration were established on the Statute book and an act of sexual penetration was then defined in the legislation to include digital penetration. There were then from that point specific crimes dealing with sexual penetration of a child. From that point the crime of indecent assault, or later indecent act or now sexual assault would not then cover penetrative acts. Those acts were covered by the specific crime of sexual penetration which had a much higher maximum penalty as well. So great caution must be adopted here in looking at sentences passed either recently or in the past owing to the differing maximums at play and differing conduct that can be embraced by the charge of indecent assault.

44     That is not to say that sentencing practices at the time of the offence are irrelevant. Concepts of equal justice would require me to have regard to those historical sentencing practices if they could be discerned and if they disclosed a less punitive approach.  It is almost impossible to discern sentencing practices all those years ago. I certainly do not treat the sentencing reasons of the County Court Judge in 1994 as illustrating a sentencing practice. That sentence by the way was in relation to the crimes of sexual penetration and it is not even evidence of that practice as far as I am concerned. There are references in the case of PJB to which I referred to sentences imposed for historical indecent assaults.  As I say, I have looked, but I think it is impossible to determine those past historical practices here.

45     I have looked at the Sentencing Advisory Council's snapshots that are kept in relation to indecent assault but they are of no use. They only go back to the early 2000’s and relate to offending with a higher maximum. The Sentencing Advisory Council online data can be more focussed and can hone in as it does on s.55 offences which is what I am dealing with, and sentences imposed for that offence more recently.  It gives some sense of just the pure numbers that have been imposed. When imprisonment was imposed the most common sentence seemingly imposed fell in the band from 12 months to two years, but with a sizeable enough band being sentenced to less than one year, and a large number of people not being imprisoned at all. But they are just statistics.  They give me no detail as to matters in aggravation or matters in mitigation. They give me no detail of the age of the offender or the age of the victim or the issues of delay or whether there is remorse or whether there was a trial conducted or guilty plea.  They are just numbers.

46     So my use of current sentencing practices has to take place with a keen awareness of the maximum penalty which applied at the time. I have to be cautious using current sentencing practices for an offence which now carries a higher maximum penalty. As I have said indecent assault no longer even exists. Your conduct the subject of Charge 2 if it occurred today would now be embraced by a charge of sexual penetration of a child under 16 which has not only a higher maximum penalty of15 years but a standard sentence of six years. The kiss would be charged as a sexual assault with a 10 year maximum and a four year standard sentence. That is all by the by. These are the developments that have taken place over the years but they do not apply to you. What I must avoid doing is visiting against you the increases in the maximum penalties or trends of increasing sentences which are founded to some extent on those increased maximum penalties.

47     I sense as a judge sitting in these courts that there has been a trend towards increasing sentences in this area over the last decade. I am dealing with you for offending committed in 1980 at a time when the offence had a maximum penalty of five years.  Indeed a handful of years before then, I think leading into 1967, it was a three year maximum.  Anyway I have the five year maximum at play and I must not lose sight of that fact.

48     Every crime is different and so too is every offender.  Every impact is different.  What I have to do is sentence you for your crimes, crimes committed by you over 39 years ago when you were 19, crimes that you have admitted by your plea.

49Now, prison is always a disposition of last resort for any court. If there is any other option open to the court, then of course it must be selected. That is the law. Your counsel argued that the various purposes of sentencing could be achieved by a suitably conditioned community corrections order. Failing that, if a term of imprisonment was required here, that it could be wholly suspended under the old s.27 of the Sentencing Act which has application here given the offence date. The prosecution had no instructions as to the availability of a community corrections order. The Director submitted that a wholly suspended term was within range.

50If I headed in that direction, that is a term of imprisonment which I then thought could be suspended, the only requirement for you would be to simply stay out of trouble in the period of that order.  There would be no other obligations upon you at all.  I have regard to every submission made before me but of course as I said earlier I am not bound by any sentencing submissions either from your counsel or one’s made on behalf of the Director of Public Prosecutions of this State. I have to reach my own view as to the appropriate sentence.

51If a suitably conditioned stand-alone community corrections order could achieve all the needs of sentencing in this case, I would proceed in such a way.  I have considered the materials. I have had you assessed for your suitability for an order and I have taken into account that assessment report.  That should also be marked as an exhibit so I will mark that as Exhibit D.  I told you though on Wednesday that you really must not take any comfort from the fact that I was having you assessed for your suitability for such an order or that I was extending your bail to permit that assessment. I told you that that in no way signified that this case would have a happy ending for you. I was not just flapping my lips. I meant what I said.

52This case it seems to me has been very delicately balanced. Anyone who says sentencing is easy should come and sit where I sit now. By the way the only people who say that sentencing is easy are people who have either never done it or people who have long since ceased doing it.

53Here I have serious criminal conduct with sizeable impact upon a young victim but committed by a 19 year old youth 39 years ago. It was your first offence. I have the issues posed by the serious subsequent offending as a 33 year old man but I then have the period of 25 years since then without any subsequent matters alleged.

54In the period since the plea I have read all the materials more than once I can tell you, and considered the various submissions made. I have worked my way through at least half a dozen drafts of these sentencing remarks. There have been different endings to the ending which I will soon publish. As I considered the matters in mitigation of course they moved me in the direction of an ending with a non-custodial sentence when you were heading out the door to your right, the door furthest from you. I would return then to consider the age of the victim and the seriousness of the actual crimes as well as the impact and that happy ending evaporated and it was replaced then by an ending that had you being led out the door closest to you, out to the prison van and out to gaol this morning. As I moved though through the materials, I kept returning to your guilty plea and my finding of it being accompanied by remorse. A guilty plea in the setting of such a long delay and in circumstances of it being a word on word allegation.

55Your plea has saved you.

56Ultimately I am, by the barest of margins, as I am sure you will appreciate from these comments, satisfied that it is open to me to deal with you without confining you.  My judgment is the best approach is to place you on a community corrections order. I want to make it as clear to you as possible, and I am sure I have already, that had you pleaded not guilty and been convicted of this offending nothing, and I mean nothing, could have saved you from a sizeable term in gaol.  There would have been no possibility of the outcome that I will soon announce.

57I can only place you on a community corrections order if you consent so you need to listen carefully as I explain what it will involve. You breach this order at your own peril. You should not expect another chance. This is your chance.  Take it or else.  Let me just look at the form of the order.  This will take a little bit of time but just listen carefully because at the end of this I will ask your counsel to go down and speak to you to confirm that you are consenting to this order.

58You have not had one of these before so I need to, as I say, spell it out pretty directly to you.  This is if I may say so a much more difficult outcome for you than would be posed by a term of imprisonment wholly suspended, even though that disposition would be above this on the hierarchy. A community corrections order is much harder and that is because I can attach conditions to it.  It is not just a matter of sailing out of court and staying out of trouble for a couple of years. It is staying out of trouble and doing this unpaid work, going to that treatment, doing this, doing that, and failure to do so will place you back in that dock.

59So as you understand I think from the discussions with the Corrections crowd I think I have got a document saying that you understand this, these orders have mandatory terms.  They apply to everyone who gets one.  You are getting one so they apply to you.  The first of those is you must not commit another offence for which you could be imprisoned during the time that the order is in force.

60I am going to impose a two year community corrections order on you, so it runs until 14 November 2021.  If you think this case is finished the moment you walk out that door we will meet again because it is not.  It is suspended over your head for that timeframe because you are on this order for that timeframe, so a two year order.

61If in that period you commit any offence for which you could be imprisoned then you breach the order.  That should not be a problem for you because of course other than the matter I am dealing with back in 1980 and the matter in 1994 you have been offence free, but just so there is no misunderstanding here any offence punishable by imprisonment committed by you will breach the order.  That is not dependent upon a Magistrate or court imposing a term of imprisonment.

62If you commit an offence that could in theory lead to a term of imprisonment the order is breached and these days that is virtually any criminal offence.  That is the first of the conditions.  You must report to and receive visits from the community corrections officer.  You have got to attend at the Pakenham Community Corrections Services within two clear working days of this order commencing, so get down there either today or on Monday.

63You have got to let the community corrections officer know within two clear working days of any change of address or job.  You are prohibited from leaving Victoria without first getting permission to do so from the corrections officer and you must obey all their lawful instructions.  In terms of those things I will come back and explain these in a bit more detail but they are the mandatory terms.  Breach those, breach any of those in the period of this order you breach it.

64Then there are going to be some tailored conditions.  Some of these are unmistakably punitive, make no mistake about it, and others are dealing with aspects of potential treatment.  I do not pretend really to understand why you did what you did back in 1980 and I have of course the concerns that have been raised by the 1994 conduct that is totally unexplained.

65So I have the tailored conditions that are imposed for both to achieve the various purposes of sentence, to denounce, to deter, to punish, but also to rehabilitate.  You will have to do 400 hours of unpaid community work.  That is over the two year period of this order.

66You also are going to have to - I am making it a direction - that you must attend any mental health assessment and treatment.  That can include a variety of things as directed by the Regional Manager.  I am also making it a condition that you must participate in programs and/or courses that address factors relating to the offending as directed by the Regional Manager including a sexual offender's program.

67I have considered whether I should have you under supervision and a specific condition as to supervision but I do not think that is necessary here.  I have considered whether there should be an alcohol assessment and treatment condition, but again I do not regard that as necessary in the setting.  I have diverged from the recommendations in the report in terms of the mental health assessment because you are dealing with aspects of anxiety and that is disclosed in the report itself, so I am having that condition.

68So they are a full suite of mandatory terms and conditions that apply on this order that runs for two years.  I put a lot of people on these orders and I see a lot of them back in breach.  I should not be seeing you back.  Most of the people I put on these orders have got serious addiction issues to drugs, they have been committing crimes their entire lives.  There is very much an aspect of hope when one puts people on orders and the reality kicks in when they get out of the court and they breach them and breach them often quite swiftly.

69Then there are people like you who really you should not be breaching this by offence, by the commission of an offence. That would be very surprising if you did and so the major focus of avoiding any sort of breach proceedings for you is just compliance and that should not be a problem because unlike most who inhabit the dock you have obviously got a level of discipline in your life or you would have the sort of work history that you had or the sorts of references that are placed before me.

70A lot of people I put on the order, enough of those do not even turn up to the induction appointment within a couple of days.  People breach these orders in almost every manner under the sun.  Frankly I have seen everything.  People leave the State, people move address, people lose contact with their Corrections people.  People do not bother turning up for the unpaid work.

71They are not easy actually and you will not enjoy the unpaid work, you will not enjoy the fact that it interrupts your weekends as it no doubt will.  You will not enjoy being sent for treatment, you will not enjoy the sex offender's program, I am sure of that.  Bad luck.  These are conditions that I am imposing.  This is the order that I am imposing that avoids you actually going immediately to prison today.

72If I am to give you any advice is it this; form a decent relationship with your community corrections officer.  That is critical and that should not for you be a problem at all.  If there is some direction that is given that is going to make it difficult to attend, for instance there might be some directions to do unpaid work, something may crop up.  If it crops up do not do what a lot of people do and just bury your head in the sand and do nothing. Get on the phone, reschedule it.

73They might require some sort of proof as to why you cannot attend but that is always much better that just not turning up because as I say I see a lot of people who come back here in breach of these orders and they have breached them in all manner of silly ways. 

74I do not know what the work will be.  You will probably be asked to provide a medical clearance I imagine.  Do not muck around with that, get it provided and get the work done and dusted.  You have got a two year order.  You have got 400 hours and if you put the work off and put it off and put it off you will then have the order compressing to the point in time where there will be difficulty even doing it and that will put you in breach.

75So start off in a positive fashion, deal with the work, get it done.  Most people who are placed on these orders in this sort of setting, that is a standalone order, I am sure there must be a sense of relief when they leave court.  I think there will be a sense of relief in your mind.  You did not know how this was going to play out and frankly nor did I on Wednesday.

76It could have played out in a very different fashion with you commencing a term of adult imprisonment.  It is not, so it would be strange if there was not a sense of relief, but I see people head out that door and they kick their heels up in the air.  I do not see that but I then see a breach report six months later saying they did not turn up or they could not care less about the work, 'They did not do this, they did not do that, they have made no effort'.

77What they have lost focus on is that the order is a continuing obligation.  The case has not finished and the order is the thing that has prevented them from sailing out the door to prison.  You think about the way you felt coming to court today not knowing whether you would be going home tonight to your own bed or whether you would be joining some pretty unpleasant characters out in prison.

78So if at any stage your effort on the order starts to wane turn back and consider how you felt today or Wednesday and you are avoiding a term of imprisonment.  I believe it is open to me to proceed in this way, to punish you, to deter you and others, to achieve all the purposes of sentencing but by a disposition that does not involve you being confined.

79Take the chance that you are being given.  As I say, you breach any the mandatory terms you will be breached.  If the work is not to your liking and you think, 'I'm not going to waste my time doing that', you will be breached.  You will find your way back before a court.  Which court will you be coming back to?  It will be this court.  Which judge?  There will be a knock on the door and who is going to come in?  It is going to be me.  So I think you are getting some sense of the fact that you do not want to see me again and I do not want to see you.

80If I do not I think it will demonstrate that this is the right disposition.  If I do, tough luck, bring your toothbrush - though I think they are provided in custody, but do not expect another chance from me.  If you breach this order of course I cannot say exactly what I would do because what I have got to do is what I have done in this case, not come onto the Bench with any sort of preconceived ideas as to what I will do, I have got to come and listen, I have got to judge, not prejudge.

81So I would have to listen to understand the nature of the breach, why you breached, what was happening in your life, what has been happening since.  Of course I have to have regard to all those things, but breaching one of these orders itself is a criminal offence of breaching a community corrections order.  That is punishable by a term of imprisonment.

82But the real sting, and this is the sting, for you is this; the most common disposition in this court when a person breaches a community corrections order is the order is cancelled.  If the order is cancelled the judge, this judge, then has to resentence you and if I have to resentence you you should work on the theory of getting a sizeable term of imprisonment, one significant enough to require the fixing of a non-parole period.

83That is not what I am doing today.  I am giving you a chance today, not because counsel asks for it, not because the DPP are saying that you do not have to be locked up, but because having reviewed all this material I believe it is open to me in the exercise of my discretion to do exactly what I am doing.  But as I say, do not be rocking up on a breach proceeding thinking it is as simple as saying, 'Give me another chance'.  It really is not.

84You have avoided a term of imprisonment here today.  Do not think there is a prospect of that occurring in the future.  But as I say, I would take into account everything that was said on your behalf.  Let me just see if I am getting informed consent here. Mr Hannan, go down and speak to your client if you would please and satisfy me that he is understanding what I am saying and he consents to the order please.

85MR HANNAN:  Yes, Your Honour.  Can I take that with me for his signature?

86HIS HONOUR:  Let me just have a look it again.  Hold on, I have got it up here.  Yes, I have got it here.

87MR HANNAN:  He is clear in his instructions, Your Honour, and he understands that which you have described and the document that he has signed.

88HIS HONOUR:  I will have copies of that made in one moment.  Can you - I will have you remain seated actually, Mr King.  Can you just confirm then that you have signed this community corrections order?

89OFFENDER:  Yes, Your Honour.

90HIS HONOUR:  You have signed it under the words, 'I understand the effect and the conditions of this order and consent to it being made'.  Is that so?

91OFFENDER:  Yes, Your Honour.

92HIS HONOUR:  I have explained to you in some detail I think the potential ramifications if you are foolish enough to breach this order.  What is your understanding as to what may well happen if you breach it?

93OFFENDER:  Yes, Your Honour.

94HIS HONOUR:  You understand that you will be likely to go to prison?

95OFFENDER:  Yes, Your Honour.

96HIS HONOUR: That order has been signed and I have signed it as well and I will have that copied. There are a couple of ancillary orders that are required here. The first is an application for what is referred to as a forensic sample under the provisions of s.464ZF of the Crimes Act. There is no opposition to the making of this order that I am going to make. I order that pursuant to those provisions you undergo a forensic procedure for the taking of a scraping from your mouth in accordance with the relevant provisions of the Crimes Act until a sample of sufficient standard is obtained for placement on the database.

97I order then because this is a non-custodial form that you for the purposes of that procedure you report to the officer in charge of the Cranbourne police station within the next four weeks or longer of course if there is some appeal in relation to this order and that is to provide the forensic sample.  They will understand what you are there for when you turn up and they will just run a mouth swab around the inside of your mouth.

98It is not a particularly invasive sort of process but I have to tell you that notwithstanding your present non-opposition to it they can use reasonable force to do so.  They should not need to.  If they have difficulties no doubt the authorities would be back before me making application for a blood sample which is what I have not authorised.  I am authorising a scraping from your mouth.  I am satisfied that the making of the order is justified owing to the seriousness of the offending, the fact that it is not opposed and that it is in the public interest to make the order.

Sex Offenders Registration Act 2004

99Secondly, you have been sentenced by me in relation to what is treated by me as a single Class 1 offence under the provisions of the Sex Offenders Registration Act 2004. That is by virtue of the fact that the events took place within the same 24 hour period.  You also have two convictions for Class 1 offences, though subsequent matters.  You must therefore comply with your reporting and other obligations under the provisions of the Sex Offenders Registration Act 2004 for the remainder of your life.  I am going to have shortly handed to you a document that explains your obligations under that Act.  You really will need to acquaint yourself with your obligations in due course.  At this stage all I am doing is providing it down to you and having you sign to acknowledge that you have received those explanations as to the responsibilities under this Act of Parliament.

100When you have the chance to read it and you better do it, you will learn that the Sex Offenders Registration Act 2004 imposes a number of conditions upon you including reporting requirements and impediments to future employment in a variety of areas. There are meaningful impediments to your future contact with children. What you must do is familiarise yourself in due course with these various matters, as any breach of the Act or your reporting obligations under that Act, is itself a very serious criminal offence  It is one that is punishable by a term of imprisonment, so it would breach my order if it occurs in the currency of the community corrections order.

101Mr Hannan, you have seen these documents often enough I am sure.  I am dealing with the notification of his reporting obligations.  It is a very lengthy document as I am sure you are aware.  It goes into all of those requirements under this Act.  I am not for one moment contemplating that he is going to be sitting down there in the dock reading it and digesting it.  No-one ever would do that, it would be beyond anyone.  I am simply providing him with the document and he is being asked to acknowledge, by his signature, that he has received the relevant notice under that Act.  So you understand that?

102I think what I might then do is have my Associate go down with you and just ensure that your client understands what he is being asked to sign and I will then get him to sign it.

103MR HANNAN:  Yes, Your Honour.

104HIS HONOUR:  You will get a copy of it obviously and it is critical that he understand it.

105I note that your client has signed that document.

Section 6AAA 

106Finally, and I know this  has taken a long time, I make no apologies for the length of my sentencing remarks.  Others can judge whether it is better to have two and a half pages that go into almost no detail or 28 pages, as I have, but it has taken that time because we are dealing with a very significant issue both for you and for others.

107I have taken into account your guilty plea.  As I have told you it has saved you.   If you had pleaded not guilty and been found guilty of these offences by a jury, I would have convicted you and sentenced you to two years and four months' imprisonment. I would have fixed a non-parole period of 16 months.

108So I would have sent you to prison, no question about it.  Are there any other matters that I need to deal with at all or not?

109MR DONAGHY:  No, thank you, Your Honour.

110HIS HONOUR:  Mr Hannan?

111MR HANNAN:  No, Your Honour.

112HIS HONOUR:  Thank you each of you for your assistance.  As I say, I do not think I have named the victim in my reasons but I will look at that and consider whether I need to anonymise them.  I do not think I do.  Your client will be free to leave the dock once I have left the Bench and if you can vacate the Bar table and we will get the other parties in place?  Thank you.

- - -