Director of Public Prosecutions v Kovac

[2017] VCC 1845

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-02126
CR-16-02131

DIRECTOR OF PUBLIC PROSECUTIONS

v

VILI KOVAC

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JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Melbourne
DATE OF HEARING:	Trial: 11-22 September 2017 Plea: 22 November 2017
DATE OF SENTENCE:	7 December 2017
CASE MAY BE CITED AS:	DPP v Kovac
MEDIUM NEUTRAL CITATION:	[2017] VCC 1845

REASONS FOR SENTENCE
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Subject:  Sentencing; guilty verdict; plea of guilty

Catchwords:  Historical sexual offences; buggery; indecent assault of male under age  16; offences in 1960s; teacher; offender now aged 85 and in poor health; multiple subsequent convictions for offending in same period; lost chance of concurrency; long delay

Legislation Cited:     Sentencing Act 1991, ss 6D, E, F; 6AAA

Cases Cited:R v Boxtel [2005] VSCA 175; R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269; RHMcL v R (2000) 452; DPP v Hopson [2016] VSCA 303; Gordon v the Queen [2013] VSCA 343; DPP v Toomey [2006] VSCA 90; R v Boyes [2004] VSCA 97; R v Smith (1987) 44 SASR 578

Sentence:                  TES: 4 years imprisonment with a non-parole period of 12 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Fisher	OPP
For the Accused	Mr V. Peters	Alan McMonnies

HER HONOUR: 

1Vili Kovac, you are before me for sentence on two charges, both relating to offending by you in the 1960s.  You have pleaded guilty to one charge of indecent assault on a male, and you were found guilty by a jury on a historical charge of buggery.

2At the time when these offences were committed, the maximum penalty for buggery was 20 years' imprisonment when committed on a person under 14, and for indecent assault of a male person it was ten years' imprisonment.

3As I have said, both of these charges arise out of events which occurred in the 1960s.  The offending was committed against adolescent boys who are now men in their sixties.  Their names have been used in all formal documents and during court hearings, but I shall use only initials in these reasons for sentence, not out of any disrespect for them, but so as to protect their privacy on publication of these reasons.

4The circumstances giving rise to each charge are detailed in prosecution openings, and I shall only repeat enough description to enable assessment of the general circumstances and seriousness of the offences. 

5The first offence in time is the charge of indecent assault of a male.  You pleaded guilty to this charge.  It arises from your conduct in about 1962 and 1963 in relation to a boy, MC, who was aged between 12 and 13 at the time.  At the time you were aged between 29 and 30.  At the time you were employed as an athletics coach and Phys Ed teacher at Xavier College. 

6MC was not a student at that school.  He was from a conservative practising Catholic family in which at that time family life was unhappy, with financial difficulties and conflicts within the family. He was 12 or 13 when he met you, and vulnerable to the friendship you offered.  He came to know that you were a teacher at Xavier College. You were friendly, cheery, offered to let him drive your car.  From this position of trust and apparent friendship you subtly introduced him to sex.

7He first met you in his school in St. Kilda where some other boys were talking with you in your car.  He next saw you near boatsheds at Sandringham, recognised you, and you and he began to chat about cars and you took him to your car, offered to drive him home, which you did, and offered to give him another ride at another time.  On another occasion he saw you again at Sandringham and you let him drive your car around the carpark.  You would pick him up in your car near his house from which he would sneak out to meet you as he enjoyed being with you. 

8The charge of indecent assault of this boy is a representative charge.  It is based on an occasion at your apartment when you masturbated him using his hand and KY Jelly.  This charge represents two further occasions of indecent touching.  Having taken MC on a drive in your car and permitted him to drive the car near an off-road track, you fondled him over his clothes and asked him to touch you over clothing on your penis.  On another occasion in your car with him, you both had your pants down, making him self-conscious, and you caused each of you to masturbate the other's penis.  These events occurred, as I have said, in approximately 1962 to 1963.

9MC prepared a moving Victim Impact Statement which he read in court.  I accept that it contains the thoughts he wanted to express and deeply holds, and no formal objection was taken to some of its contents.  However, I have only taken into account in reaching my sentencing conclusions the matters that relate to what have been results of your offending against him, rather than what fault he feels lies with others, including institutions.

10MC acknowledged that your plea of guilty had had some significant positive impact on his ability to cope with the whole process of bringing these matters to a conclusion.  He describes how you befriended him at a fraught time of his life, introduced him to sexual activity and information well beyond his years, reinforcing a message that this behaviour was okay and implying that other boys were having sex with you and each other.  With hindsight, he regards this as your strategy to groom him. He describes long term impact of your offending on him and his life decisions, from having taken away his right to explore his own sexuality in his own time with people of his own age, and having interfered with critical years of his school education, to an ongoing sense of shame and guilt that still remains, that tormented his older teenage years, and affected his married life and relationship with his children.  He regards it as even affecting his relationship and attitude towards his grandchildren.

11Having decided to report this matter, he told his former wife and his now adult children and other close relatives, leading to many tears.  While he describes continued impact on his life and his thoughts, it is to be hoped that disclosure to close family, and the conclusion of this court proceeding, may bring him some relief.

12The charge of which you were found guilty by a jury relates to events that occurred in 1968.  At that time, CH was aged 12 or 13 and was a student at Marcellin College where you were employed as a physical education teacher.  You were aged about 35 or 36 at the time.  You were supervising a camp at Wilson’s Promontory which CH and many other boys from his school attended.

13Without repeating all of the details which were explored during the trial, the jury must have been satisfied beyond reasonable doubt that the event that CH described did occur.  That involved you entering his tent at the camp one night while he was asleep, and where at least three other boys were also sleeping.  He described waking to find a hand over his mouth and feeling a person behind him holding him down, pull down his pants and forcefully anally penetrate him.  He saw the person who had done this get up to leave the tent and identified the person as you, his then physical education teacher. He described feeling great pain as well as shock and humiliation at the time, struggling to deal with the immediate after effect while hoping that no one else had heard or seen what had occurred.  He described struggling through the time before his return home in physical discomfort and emotional distress.  On returning home he felt totally unable to tell either of his parents or any sibling or indeed any other person what had occurred.  He felt both humiliated and fearful of not being believed.

14It was not until 2014 that he told anyone.  That arose after he had witnessed a man he knew sexually offending against a boy, and when he was making a statement to police about that he disclosed that he had himself been abused by you.  Even then, he was not prepared to make a statement to police formally to initiate formal inquiry, and he did not do so until 2016.

15Giving evidence during the trial, CH appeared deeply traumatised as he appeared to be reliving the events he described.  In a Victim Impact Statement which he read during the plea hearing he seemed to me more focused on the present.  He states that this incident turned his world upside down.  He describes how he stopped taking an interest in the various sports which he had enjoyed and in which he was very talented, had no regard for authority after this incident, played up at school, and was subsequently expelled from Marcellin College.  He resisted his father's wish that he attend another Catholic school as a boarder, to the extent of running away from home, and this undermined his relationship with his father.  He never told either of his parents about this incident.  He did go on to another school but failed matriculation.  He did not go on to achieve in sport what he would have liked or feels he was capable of doing.  He has tried many jobs but did not find a long term career.

16He says he struggled to form close relationships and in physical intimacy, and although he married in his twenties and had a daughter, that marriage ended and he describes being an overprotective parent while his daughter was growing up.  He acknowledges that he has been very fortunate to have formed another long term relationship which is now of some 17 or more years. 

17His partner also made and read a moving Victim Impact Statement.  CH first told her of your offence against him after his disclosure to police in 2014.  It was not until he told her of that that she has been able to understand more of what has caused and still influences much of his behaviours, moods and personality traits. CH's partner was given leave to be present during his evidence in the trial, and I observed her concern and distress at his traumatic recounting of the events of that offending and its aftermath and impact on him.  The impact on her own life has also been considerable through dealing with the distress, anxiety and personality traits of CH to the extent they were influenced by your offending against him.

18CH has been diagnosed with post-traumatic stress disorder.  He has been attending a counsellor for the last couple of years.  He describes life having been a struggle since he was abused by you.  It is to be hoped that with the conclusion of this court case he may be able to put some of that struggle behind him, and with the help of counselling and the support of his partner look forward to a less troubled future.

19I must assess both the objective and subjective seriousness of each of these offences.  Objectively, the offending against MC was against a vulnerable boy over an extended period during which you learned of his vulnerabilities, and it embraces three separate occasions.  This was after you had used your car and acts apparently of friendship and kindness to gain his liking and trust, and then exposed him to sexual behaviour which, as he describes, was beyond his years as a 12 to 13 year old from a strict Catholic upbringing.  The offending behaviour was, however, limited to indecent touching, some of which was over clothing.  Subjectively, I note that this offending is your first known sexual offending, occurred only a year to two after you arrived in Australia from a difficult and restricted social upbringing, probably very socially immature yourself, and may have been a manifestation of you having inadequate knowledge of boundaries of behaviour to be required of adults towards children, and in particular of a person holding the status of a teacher, even not a direct teacher of that particular boy.

20Had it not been for the many further offences of similar and escalating nature that have occurred since, this offence, dealt with alone in my view may not have attracted a term of imprisonment or at least not one to be immediately served.  This assessment is not to underestimate the serious impact that this offending has had on MC.  However, especially as you do not appear to have perceived the harm you might be causing at the time, it would not require as stern a sentence as subsequent offending of this nature.

21In respect of this charge, you also are entitled to some leniency for your plea of guilty, for saving the community the time and cost of a trial, for sparing MC from having to give evidence, sparing other witnesses inconvenience, and for accepting responsibility for your conduct even though you say that you did not recall it.  It has facilitated the course of justice, and although your remorse may not be deeply felt I am told that you do feel sorry for what you have heard to be the harm that you caused.

22In relation to the offending against CH, it is clearly more serious in several respects.  It was an act of sexual penetration committed with force, which was both invasive and painful, as well of course as causing long term emotional harm.  The maximum penalty at the time of 20 years' imprisonment reflected the then community's condemnation of such an act on a boy under 14, which is a reflection of its objective seriousness.  It was committed in circumstances where you as a teacher and organiser of the camp held authority, and with it responsibility for the welfare of the boys there, and you betrayed that role with a boy of 12 to 13 under your care and when you were more than 20 years older than him. I infer that this act could only have been to satisfy your own sexual or power inclinations, and in the circumstances there could have been no possible perception by you that this was not harmful to this boy.  I accept that it was a single incident without apparent preceding predatory behaviour towards CH, nor what is called “grooming”.

23While the charge of buggery no longer exists, sexual penetration of this type with a boy of this age has always been condemned unequivocally in the Victorian community as a very serious offence, and this incident can only be regarded as a serious offence. 

24The fact that you did not plead guilty to this charge does not attract greater punishment, but it means that you are not entitled to any of the leniency that a plea of guilty would have attracted.  CH had to give evidence, which he chose to do physically in the courtroom in front of a jury and in a formal court sitting.

25I shall leave discussion of other sentencing principles until later in these reasons. 

26I turn now to your personal circumstances.  You are now aged 85.  Indeed, the day of the jury's verdict was your 85th birthday.  You have no family still living and for the last five years you have lived alone and almost entirely isolated from social interaction. 

27Your parents were from Yugoslavia, but were living in Germany when you were born, and you lived there until about aged 14, nearly all of that time under Nazi rule.  You apparently grew up introverted, with your non-German family experiencing some prejudice, and your parents being reluctant to let you outdoors.  You were obliged to enter a Hitler Youth Program and participated in salvage activities which involved searching bombed buildings for survivors, which would have been very disturbing to a boy in his early teens.  I am told that your own family was then trapped in a basement due a bombing.

28Following that, your family managed to flee from Germany to Slovenia.  However, once there you still had difficulty integrating at school or generally amongst other children of your own age, as you were stigmatized for speaking German.  It was not until your ability in athletics was recognized, and in particular your winning of an Olympic medal in hurdling for Yugoslavia at the Rome Olympics, that you found recognition.  However, I am told that you found it hard to deal with sudden fame and being feted after the isolation and ostracism to which you had been previously subjected.

29You immigrated to Australia in 1961, joining your sister, and at some stage your mother also moved here.  You apparently had a sociable personality.  Although having no formal teaching training, and also not fully fluent in English, you were employed from about 1962 by Xavier College as a sports coach and physical education teacher.  After a few years you started organising camps, during school holidays, for boys, extending to boys from other schools than merely those where you were teaching. You ran these together with some other male teachers including from another school.  At the end of 1967 you left Xavier and moved to a similar position at Marcellin College. 

30Your mother and sister lived in Oakleigh and you spent some of your time there but also rented a flat in St. Kilda.  You liked mixing with boys and would bring them home to your flat, that being where the first occasion of offending against MC occurred.

31Without teacher training, you had not been formally taught boundaries of acceptable behaviour by teachers with students.  You were apparently admonished by a more senior teacher at Xavier for inviting the students to call you by your first name.  Both of the boys in these offences seem to have called you by a version of your first name.  It may well be that you were confused by some of those boundaries, that you were socially immature, lacked a social circle of your own age, and also that your upbringing had not exposed you to sexual education and in particular to what was inappropriate sexual behaviour with children.

32These descriptions come from what you have told those assessing you, and I am prepared to accept on the balance of probabilities that the particular restrictions and constraints in your upbringing had not fully equipped you to make adult judgments about acceptable lines of sexual behaviour between adults and children.  However, I still find that you must have known that exposing MC to sexual contact at his age was overstepping, at least noting your age difference with them. You cannot have believed that waking CH in a tent of schoolboys to satisfy your sexual inclinations could be acceptable, let alone doing it by force.

33From what you have told your lawyers or those assessing you for court cases, after you served a prison sentence in 1971 to which I shall refer shortly, for sexual offences against boys, you were not again employed at any school, and you struggled to obtain or maintain consistent employment after that.  You worked at times in hotels or restaurants, and you had some training in Yugoslavia in hospitality fields. In the 1980s you suffered a serious back injury in an accident, and that further hindered your ability to work. It also left you in chronic pain requiring ongoing medication. 

34In 2005 you faced multiple charges for sex offences, and were sentenced to a substantial term of imprisonment which was extended after another set of charges came to court in 2008.  You were released on parole in June 2012 and have led a very isolated and restricted life since then.  You were subject to parole conditions.

35You had lived for some 30 years or more in a flat that you had rented, which for more than 15 years before this imprisonment you had shared with a male friend in a mutually supportive platonic friendship.  When you were released on parole you were not allowed, under parole conditions, further contact with him, nor with what was apparently a small number of other friends.  You have continued to live in the same flat, alone, but with failing health and increasing frailty you would barely go out - a carer escorted you shopping. As I have said, you complied with parole requirements.  Apart from parole required attendances, you only seem to have seen your general practitioner and Mr Crewdson, your psychologist, and you have had occasional visits from your solicitor.

36I am told that as your history of sex offending was known, and became known by others living near you, you have been further ostracised and you have also been subjected to some harassment.

37It is of considerable significance in this case that you have previously been convicted of a number of sexual offences against adolescent boys, mainly committed in the 1960s.  None are strictly prior convictions as none had come to court before you committed the two offences on which I am to sentence you.  However, they are relevant in several ways to your sentence.  First, they show an extensive amount of sexual offending against adolescent boys during the 1960s, much of it while a Phys Ed teacher at Xavier and then Marcellin Colleges, and two other instances at camps that you had organised.  It cannot be said that any of the matters on which I am to sentence you were isolated incidents.

38You first faced charges in 1970.  In the County Court you were convicted of two counts of procuring an act of gross indecency, two of committing an act of gross indecency, and six of indecent assault of a male, on which a total effective sentence was imposed of two years and six months with a non-parole period of 12 months.  There were six different boys the subject of those charges, aged between ten and 14 or 15 at the time of the offending.  On the same day before the County Court you were sentenced to a six-year good behaviour bond for three charges relating to another boy aged about 14.  All of these offences had occurred, that is all of the ones for which you were sentenced on that day, between 1963 and 1970.

39You came before courts from time to time after that, mostly on matters not relevant to this sentence, except that you were fined in 1984 for publishing an obscene article involving children, and in 1997 for possessing child pornography.  I have no details of those offences, and although they reflect an ongoing sexual interest by you in children, I do not regard them as of major significance in your sentence.

40It was not until 2005 that you were next before a court for direct sexual offending against other boys this had mainly occurred in the 1960s, but there was amongst the 2005 charges one boy against whom you had offended in the late 1970s, that being after you had been convicted in 1970 and served some time in prison.  Therefore, you must have known the consequences of such conduct, that is in respect of the offences in the late 1970s.

41You were sentenced by Her Honour Judge Jenkins in this court in December 2005 for offending against three boys.  The offending was in the nature of indecent touching and fellatio and several of the charges were representative counts.  There was quite marked similarity between what occurred with one of those boys to what occurred with CH, in that that other boy was indecently assaulted in 1968 when a student at Marcellin College, also on a camp, and when you were in his dormitory, albeit alone with him, and rubbed your penis between his buttocks, although without anal penetration. For the overall offending dealt with in 2005, Judge Jenkins imposed a total effective sentence of nine and a half years' imprisonment with a minimum of five and a half years, a total which was not reduced by the Court of Appeal. 

42Three years later, while still serving that sentence, you came again before Her Honour Judge Jenkins, pleading guilty to further charges in relation to three further boys of similar ages, again mainly for offending in the 1960s, although against one boy in 1979.  A new head sentence was fixed of 11 years and ten months' imprisonment with a new single non-parole period of three years, nine months.

43On my calculation, you served six and a half years on those total sentences before being paroled in June 2012.  The head sentence expired in September this year, which meant that you completed your parole during the trial in respect of CH. 

44During the course of the 2005 and 2008, cases there were psychiatric and psychological assessments of you, with some of their content quoted in Judge Jenkins' and the Court of Appeal's decisions.  In 2005 Dr Danny Sullivan, a forensic psychiatrist, assessed you as meeting diagnostic criteria for homosexual paedophilia, and described your attitudes as indicating an ambivalence to regarding this as wrong.  By 2008 it seems that you had come to more recognition, at least of there being a harmful impact on boys of that age with whom you had engaged in sexual conduct.

45Mr Michael Crewdson, consultant and forensic psychologist, who first assessed you in 2008, agreed generally with the diagnosis of Dr Sullivan, although
Mr Crewdson giving evidence before me, and in a recent report, considers that you no longer meet all diagnostic criteria for paedophilia because you are no longer considered physically capable of acting in such manner and have not engaged in sexual behaviour for many years.

46Amongst the criteria that you meet for paedophilia is having little perception or empathy for the impact of your conduct on your victims.  I am told that while you feel some sympathy for each of MC and CH when you hear them describe the impact on them of what you did to them, you did not realise at the time that you were hurting anyone.  Through your counsel it is said that you now understand the difficulties you caused to each of these people and you are sorry if you hurt them.

47Your previous offending raises further sentencing considerations. First, due to the prior offences and their nature, you fall to be sentenced on each of the charges with which I am dealing as a serious sex offender, and pursuant to s.6D of the Sentencing Act, if the court considers that a sentence of imprisonment is justified, and it was conceded by your counsel that it is, then in determining the length of the sentence, protection of the community from the offender must be the principal purpose for which the sentence is imposed.  Further, pursuant to s.6E terms of imprisonment are to be served cumulatively except to the extent directed otherwise by the court.

48The latter provision modifies the application of the principle of totality, and the degree to which any concurrency should be ordered depends on assessment of objective gravity of the offending.[1]

[1]RHMcL v the Queen (2000) 452; DPP v Hopson [2016] VSCA 303; Gordon v the Queen [2013] VSCA 343

49The prosecution challenged that the sentencing principle of totality had any application in your case, or at least as it might relate to prior sentences.  In particular, the prosecution challenged that I could or should take into account that had you been sentenced on these two charges at the same time as either of the sentencing hearings before Judge Jenkins, then as there was some similarity in the type of offending and periods during which it occurred, there would have been some concurrency ordered on both of these charges with the other sentences being imposed.

50I accept the prosecution submission to the extent that I must not try and indeed could not apply a precise calculation to what further sentences might have been imposed for these two offences, nor what amount of concurrency directed, had they been before the court sentencing you in either 2005 or 2008.  Further, I have borne in mind that s.6E as part of the serious sex offender sentencing regime limits the application of the principle of totality, although strictly its terms could only apply if more than one sentence as a “serious sex offender” is being imposed at the same time, as indeed two are here, or while a previous sentence is still being served.

51In my view, it is appropriate to apply some moderation to each of the sentences I am to impose, and the degree of cumulation between them, to take into account some aspects of the principle of totality.  In my view that also applies to the question of how long you must serve in prison before potential release. 

52 In particular, the offence against MC, had it been dealt with by Judge Jenkins, or indeed before the court in 1970, was of a similar if less serious nature objectively than many of those other charges, occurred in a similar period of time against a boy of similar age to many of the others, and also has been met with a plea of guilty. As I have already said, as the first known offending of this nature by you, this charge and the nature of the acts may not have attracted a term of imprisonment had it been dealt with in isolation.  Had it been dealt with in 1970 or 2005 or 2008 when you were being sentenced for very similar offending against other boys, I am satisfied that there would have been very considerable concurrency ordered between it and other charges.  In these circumstances, to take that into account but in circumstances where I cannot direct concurrency now with those previous sentences, it seems to me that considerable moderation of this sentence is required at this stage to take into account the lost opportunity of having this matter dealt with, if not in isolation, then under considerations of totality.

53The offence against CH stands out as being of a different nature from all previous charges for which you have been sentenced, and further because it results from a trial and not a plea of guilty.  Nevertheless, I have allowed a modest moderation of the sentence on that charge to take into account that the offending occurred in the same period as many of the other offences against boys of similar age, and in circumstances similar to some of the other charges, and in my view is likely to have attracted some, if only modest, concurrency under the principle of totality in a total effective sentence if imposed at the same time as any of the previous charges. This moderation is to allow for your loss of opportunity to have that concurrency in the calculation of both the total time of a head sentence and in particular the determination of a non-parole period.

54I turn now to your age and ill health as they have been raised in many aspects of the hearing and the material brought before me on the plea. 

55You are now aged 85, and have both physical and psychological health issues.  You have effective blindness in your left eye, failing sight in the right eye, and hearing loss to the extent that you need to wear hearing aids and apparently even with those your hearing is failing further. A patient health summary from your general practitioner describes your gait as increasingly frail and unbalanced, and you have had an increasing number of falls.  Your history includes osteoarthritis in both knees, and a significant back injury many years ago for which you still take pain medication.  You struggled to stand in court during the trial and plea hearing, and I excused you from doing so.  I observed that you appeared reliant on a walking stick in order to stand.  You have ischemic heart disease, bladder problems due to enlarged prostate, and diabetes mellitus type 2. You take an extensive list of prescribed medications.  Your GP describes you as suffering from multiple chronic illnesses and having increased debility such that you have difficulty coping in your home situation, and require support from council and a carer to take you shopping. 

56From a psychological point of view your GP lists a history of anxiety in 2005.  In both 2005 and 2008 you were assessed as suffering from anxiety of a low to moderate degree, with occasional panic attacks and depression requiring medication.  Judge Jenkins accepted that those conditions were of a longstanding nature and not merely arising from your fearing imprisonment or the effects of your imprisonment from 2005.

57Dr Lester Walton, consultant psychiatrist, provided a psychiatric assessment of you in July last year when the charge in respect of CH was first laid, in order to assess your fitness to attend court and to plead.  He confirmed that you suffer chronic anxiety and depression of diagnosable proportions.  He found you aware of the nature of the charges and that you were able to plead, albeit in a rather piecemeal fashion, and to provide relevant information.  He considered that fatigue may require you be given extra rest breaks during proceedings to allow you to follow adequately.  His opinion was that as an elderly infirm man with chronic mood disturbance, certainly you would endure incarceration as particularly onerous.

58Clinical and forensic psychologist Mr Michael Crewdson had provided reports, and gave oral evidence before me.  He had first assessed you in 2008, in that instance by video link, and when you were released on parole in 2012 he was asked by the Parole Board to treat you and conduct ongoing liaison between your treatment and the Board.  He has continued to do that, mainly without payment.  He has treated you clinically on what he calls a sporadic basis, being approximately six times a year. He is one of the very few people with whom you have had ongoing social contact, and whose opinion is up to date, and as such I regard his evidence as of considerable weight.  I shall not, however, repeat the detail in his reports as much refers to the learning and statistics about paedophile characteristics and associated issues. 

59Mr Crewdson's opinion is that you do not have indications of psychosis or bipolar disorder, but that you are and remain highly anxious, depressed, and psychosocially inhibited.  He considers that cognitively you have early signs of dementia, and that it is progressive.

60Although he does not consider that there were mental impairment issues relevant to the offending at the time, Mr Crewdson considers that there were personality issues arising from your background experiences that probably did. 
He considers that there are important psychosocial issues relating to your present status and likely prognosis that may be relevant to sentencing.  He assesses you, as I have already said, as anxious and depressed, particularly about the prospect of a further term in prison.  He considers that the impact of imprisonment on you now would be more severe than on most people due to your physical difficulties, increasing dementia, ongoing anxiety and depression and social isolation.

61In the case of R v Van Boxtel, the Court of Appeal confirmed that it is a circumstance of mitigation that a sentence of imprisonment will be significantly more burdensome for a prisoner in poor health than for a person of normal health, and that applies to both physical and psychiatric illnesses and disabilities.  In relation to mental illness or disability, of course, the case of Verdins subsequently has amplified those matters, and indeed the fifth limb again from that case picks up the same principle as to whether a mental illness or impairment is likely to make the enduring of imprisonment more burdensome.

62The question for the court is whether the evidence supports that imprisonment is likely to be significantly more burdensome for you due to either or both physical and mental frailty.  I am satisfied that there is evidence in this case that supports that both your physical and mental health conditions are likely to make further imprisonment more burdensome for you than would be the case for someone not suffering from those infirmities.  I am satisfied of that from the evidence of Mr Crewdson, together with the health record he annexed to his report from your GP, and the opinion given last July by Dr Walton.  I am satisfied they support that you suffer from both chronic physical and psychological conditions that are likely to significantly bear on your ability to endure a further term of imprisonment. You have some chronic physical conditions that significantly limit your movements and your ability to tend to your own daily needs.  While cooking and shopping will not be an issue in prison, your lack of balance and being subject to falls more frequently would be, and together with hearing and sight impairments, and underlying ischaemic heart condition, in my view all of those together will make the physical endurance of imprisonment even more restrictive than for a person in normal physical health, and it is likely that you will be in more confined conditions without the physical ability to undertake exercise or participate in other activities.

63I also consider that the chronic anxiety and depression which was noted to be heightened in 2008 having regard to your being in prison at that stage and facing further sentencing, as well as the onset of dementia, is of significance, especially as Mr Crewdson who has been seeing you every two months or so over the last five years considers that the dementia is progressive.  I am satisfied that these matters are likely to make you more vulnerable and less able to cope physically or mentally with imprisonment, and also less able to mix with other prisoners to gain some social interaction.

64I do not overlook principles from previous cases[2] that it is the responsibility of the correctional services authorities to provide appropriate care and treatment for sick prisoners that generally speaking, ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health, or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health.  In the present case, for the reasons I have outlined, I am satisfied that the first basis for such mitigation has been established.  There is no direct evidence before me about the second.

[2]R v Boyes [2004] VSCA 97; R v Smith (1987) 44 SASR 578

65I turn next to take into account what is exceptionally long delay between these offences having occurred and you being sentenced for them.  In these cases it is some 49 years for one charge and 55 for the other.  I do not find that this delay was the fault of any of the complainants, nor of you, nor of the prosecuting authorities.  It is well known that it is not unusual for persons who suffer sexual assault to delay in reporting such events, if they ever do.  In both of these instances there was a triggering event that caused each man to decide after more than 45 years to report your offending to police.  The police and prosecuting authorities then acted without any undue delay.

66There are consequences of delay when not the fault of the offender which should be taken into account as mitigatory generally in sentencing, although delay in relation to historic cases of sexual offending will often be given less significance, particularly because it is so common that complaints are long delayed. 

67One consideration is whether the offender can point to rehabilitation and change of lifestyle and decreased risk of further offending in the meantime. Although again it has been noted in other cases that good character and good deeds since past offending does not weigh as greatly in cases of historical sexual offending and that it must be borne in mind that the victims of sexual abuse often find it much harder to achieve their own rehabilitation,[3] I do consider that some reflection of what has happened since is called for in this case. In this case there is no known further offending of this nature for more than the last 37 years, and although there is no evidence of particularly good works or deeds since, I am satisfied that there is effectively no risk of you reoffending in any similar manner.  In your case, you have not had the benefit of living all of the intervening decades with the illusion of good character, because since your 1970 convictions, and in particular since those in 2005 and 2008, that offending has been known and at times has been used against you.

[3]DPP v Toomey [2006] VSCA 90

68It is unclear whether you have had or thought of the burden of wondering over the years whether complaints would be made arising out of your conduct with the boys over whom you had authority many years ago, but I accept that since the complaints that led to your being charged and convicted in 2005 and 2008, you have been alerted to the possibility of further complaints emerging, even though you apparently did not recollect either of these complainants specifically.

69What in my view does carry mitigatory weight arising from the very long delay in the bringing of both of these charges, is that you are now facing sentence for these offences as an elderly infirm man likely to endure imprisonment much more onerously than had the charges been brought many decades ago when you were in a much fitter state to undergo imprisonment.  Further, the fact of your having undergone six and a half years' imprisonment in your seventies in my view makes this further delay more burdensome.  I have taken this into account in some mitigation and in conjunction with what I have already described as the direct impact of your age and poor health on your endurance of imprisonment.

70I have already said that due to your past convictions you fall to be sentenced on each of these charges as a “serious sex offender” and as such protection of the community is to be the principal sentencing purpose.  To achieve that, I could impose a disproportionate sentence but I do not consider that required in the circumstances, and the prosecution does not urge that I do so.

71In light of your age and the medical evidence as to your state of health, the evidence of it being highly unlikely that you could physically commit any offence of this nature again, even if you ever came into contact again with adolescent boys, which in itself is extremely unlikely as you have barely been able to leave your flat unescorted for the past few years, and as the last known sexual offending by you was committed more than 37 years ago, I consider that protection of the community from you does not require much time in prison at this stage.

72Although s.6D seems to direct that protection of the community is to be given greatest sentencing weight, I regard general deterrence and community denunciation of offending of this type as of at least as much importance and certainly of significant importance in your sentence. Sexual offending against children by an adult, and indeed by an adult who has either a position of authority or respect in relation to such children, must be unequivocally condemned and a sentence imposed that sends a message to any other person who might seek to engage in such activity that he or she can expect stern punishment.

73It has been said that in sentencing, protection of children as the weakest and most vulnerable members of community must reflect community denunciation of this behavior, and is a test of the courts that they do so.

74Taking all of these matters into account and as was conceded by your counsel, no sentence other than imprisonment would be appropriate. 

75I have given careful consideration to whether a total sentence of no more than three years would be adequate as that would enliven the option for such dated offences of the sentence being wholly or partially suspended.  However, the seriousness of the offence against CH, and the absence of any moderation of it for a plea of guilty, in my view has meant that a higher head sentence is necessary to adequately meet sentencing requirements, even after the various moderating considerations I have already mentioned.

76In considering a non-parole period, I have taken into account that you served a minimum term of six and a half years, and then a further four years on parole and that that sentence only expired some two months ago.  I infer that you satisfied Parole Board requirements, including completion of any designated programs, initially to be granted parole, and then throughout your parole period.  I frankly do not consider that any further offence specific programs would be likely to have any effect on your future behaviour, nor in my view are they needed.  In this regard I note Dr Walton's opinion that a sex offenders’ program is unnecessary, but that counselling to assist with your anxiety and depression would not be misplaced.

77I do not regard you as of any effective risk to the community at your current age and in your state of health.  You will unfortunately have no support on your release into the community, apart from whatever measures are put in place by the Parole Board.  You will almost certainly have lost the accommodation where you have lived for a very long period.  You have no remaining friendships or family connections in the community to support you, either whilst you are still in prison or on your release.

78You are already on the Sex Offender Register, with requirements of reporting for life, and on your release from the sentence I am about to impose there will be an obligation for ongoing reporting. 

79Having regard to all of the circumstances that I have mentioned, I have decided to set a very much lower than usual
non-parole period.

80I now come to sentence you, Mr Kovac.  I will let you remain seated unless you feel able to stand. 

81Vili Kovac, on Indictment G11165061.1, that is the charge of indecent assault on a male in respect of MC, you are convicted and sentenced to six months' imprisonment.

82On the indictment in respect of the charge of buggery in respect of CH, you are convicted and sentenced to three years and ten months' imprisonment. 

83I direct that four months of the sentence on Indictment G11165061.1, that is the charge of the indecent assault, be served concurrently on the sentence imposed on the charge of buggery.  That leaves two months cumulative, and creates a total effective sentence of four years' imprisonment.  I fix a period of 12 months as a minimum term before you can be eligible for parole.

84On each of these charges you are sentenced as a serious sex offender. Pursuant to s.6F of the Sentencing Act I direct that the fact that you are being sentenced as a serious sex offender on each charge be entered in the records of the court.

85Is there anything I have overlooked?

86MR FISHER:  Just one matter.  In relation to the plea, there is a 6AAA declaration, for what it's worth, that Your Honour should make.

87HER HONOUR:  Yes.  In relation to the charge of indecent assault in respect of MC, I state that but for the plea of guilty, but all other circumstances being the same, I would have imposed a sentence of nine months' imprisonment.

88MR FISHER:  If Your Honour pleases.

89HER HONOUR:  Some paperwork needs to be prepared.  It does not involve the Sex Offenders Registration Act paperwork because that is already in place.  I intend to put a custody note in relation to Mr Kovac's health and I intend to attach to the documentation that goes with him the health summary.  I will attach the report of Mr Crewdson with your client's permission, Mr Peters, I would not do otherwise.

90MR PETERS:  Yes, Your Honour.

91HER HONOUR:  I have already put in motion and will note that I require him to be assessed medically and psychologically immediately on his arrival at the assessment prison If I use the word "immediately" I am not sure that that comes up, but I want to make clear I will put a note "without delay" he is to be medically and psychologically assessed.

92I am assuming he has brought with him his medications or prescriptions?

93MR PETERS:  No, they are at home.

94HER HONOUR:  The medical report I think sets them out, but which of them he is currently taking.

95MR PETERS:  Most of them, I think, Your Honour.

96HER HONOUR:  Do you want to seek some instructions on that, Mr Peters?

97MR PETERS:  Yes, Your Honour.  It's a bit awkward, Your Honour.  He's not hearing me.

98HER HONOUR:  Does your client have his hearing aids with him?  I know he has to take them off to put on the court headset.

99OFFENDER:  Yeah, I didn't know until I (indistinct).

100MR PETERS:  He can hear speaking through the microphone.  He's got a pill

box with him and if they carry out an immediate assessment, medically and psychologically, one would think ‑ ‑ ‑

101HER HONOUR:  Yes, but I want the list obviously to go so that anyone doing the assessment is alerted to everything they should be considering.

102MR PETERS:  Yes, exactly.

103HER HONOUR:  I am not just asking, because matters may be forgotten.

104MR PETERS:  I agree, yes.

105HER HONOUR:  Take a seat for a moment, Mr Peters.  I'm going to have both of these orders checked by both sides, counsel, that there is this issue of the two - of dealing with what degree of concurrency there is because they are on separate court files on separate indictments but my Associate will bring that to both Counsel.

106PROSECUTION INSTRUCTOR:  Yes, Your Honour.

107HER HONOUR:  ‑ ‑ ‑ counsel to check that it reflects, well - yes. 

108MR PETERS:  Thanks, Your Honour.

109HER HONOUR:  All right.  I'll sign those orders and Mr Peters, I see
Mr Crewdson's in court.  If you and he would like to talk to your client before he's removed from the courtroom, that's satisfactory. 

110MR PETERS:  I think it might be easier downstairs, Your Honour.

111HER HONOUR:  All right.

112MR PETERS:  I've got to dash off anyway.  Mr McMonnies is coming back and he and Mr Crewdson I think can go in and see - All right, Mr Crewdson will talk to him now.

113MR CREWDSON:  If I may, Your Honour.

114HER HONOUR:  Yes.  If you'd like to approach the dock, that's all right. 

115MR PETERS:  He can't hear me so ‑ ‑ ‑

116HER HONOUR:  Mr Peters, I have signed the orders and that material, the medical material, will accompany the orders and hopefully be ‑ ‑ ‑

117MR PETERS:  Yes.

118HER HONOUR:  ‑ ‑ ‑ scanned in so that they can't become detached.  If there's a facility for doing so, I'm prepared to direct or authorise that there's an opportunity for Mr Crewdson to talk with your client in the cells.  I don't know if he needs particular authority to access there but in the circumstances of this case I'm well aware that this will have very great impact ‑ ‑ ‑

119MR PETERS:  Yes.

120HER HONOUR:  ‑ ‑ ‑ psychologically on Mr Kovac and that Mr Crewdson has been clinically treating him for a number of years and is the ‑ ‑ ‑

121MR PETERS:  Yes, Your Honour.

122HER HONOUR:  ‑ ‑ ‑ closest to be able to discuss the consequences. Now, I can't set up a consultation as such.  Is it - I don't know if the prosecution knows, is it possible for me to give authority for a treating psychologist into the cells?

123PROSECUTION INSTRUCTOR:  I'm not sure I can answer that question. 

124HER HONOUR:  No.

125PROSECUTION INSTRUCTOR:  The custody officer may be able to assist.

126MR PETERS:  There needs to be a direction, yes. 

127PROSECUTION INSTRUCTOR:  A direction is certainly open to Your Honour and ‑ ‑ ‑

128HER HONOUR:  Yes, I ‑ ‑ ‑

129PROSECUTION INSTRUCTOR:  ‑ ‑ ‑ I submit would carry significant weight.

130HER HONOUR:  Well if it is possible, I will make such a direction.  I don't mean to keep Mr Crewdson here longer than he needs to be, but it seems to me it is  desirable for him to be seen by Mr Crewdson, if that is possible.

131MR CREWDSON:  Your Honour, I'll certainly go down.  Mr McMonnies is downstairs from his other matter.

132HER HONOUR:  I see.

133MR CREWDSON:  So I can actually probably go in with him.  I mean, normally I don't have ‑ ‑ ‑

134HER HONOUR:  If you know you can get the access, that's fine.

135MR CREWDSON:  ‑ ‑ ‑ any great problem.

136HER HONOUR:  I am not unmindful of the impact of the sentence I've just imposed and I hope I've explained why I've felt that was the appropriate sentence to impose.  If it needs any authority from me I'm happy to make that direction but if Mr Crewdson knows how with Mr McMoneys to be able to see his client downstairs I'll leave it at that.  I'll therefore ask that Mr Kovac be removed from the courtroom, please.  Mr Kovac, you are now being taken into custody but your solicitor will see you downstairs and Mr Crewdson hopefully also.  Now the earphones have come off.

137All right, Mr Kovac is clearly struggling to be able to stand.  I think some assistance might be needed.  The paperwork is coming so that it can accompany Mr Kovac.  Would it be best if I stand the court down and allow some time for him to be able to be physically removed from the court? 

138PRISON OFFICER:  Yes, Your Honour.

139HER HONOUR:  All right.  I will stand down the court down and those involved in this matter are excused.

140MR PETERS:  Thank you, Your Honour.

141PROSECUTION INSTRUCTOR:  As Your Honour pleases.

‑ ‑ ‑