Director of Public Prosecutions v Leigh (a pseudonym)
[2023] VCC 1820
•6 October 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TRISTAN LEIGH (a pseudonym) |
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JUDGE: | HIS HONOUR JUDGE CARMODY |
WHERE HELD: | Melbourne |
DATE OF TRIAL: DATE OF HEARING: | 27 February – 10 March 2023 28 September 2023 |
DATE OF SENTENCE: | 6 October 2023 |
CASE MAY BE CITED AS: | DPP v Leigh (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1820 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sexual penetration of a step-child – sexual assault of a child under age 16 or 17 under the care, supervision and authority
Legislation Cited: Sentencing Act 1991, s6B; s6E
Cases Cited:Carr (a pseudonym) v The Queen [2021] VSCA 130; Langton (a pseudonym) v The Queen [2022] VSCA 79; Shannon Packard (a pseudonym) [1] v The Queen [2022] VSCA 128; Norman Porter (a pseudonym) [1] v The Queen [2022] VSCA 177
Sentence:Convicted and sentenced to five years and five months imprisonment with a non-parole period of three years and three months imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr F. Cameron | Director of the Office of Public Prosecutions |
For the Accused | Mr J. Desmond | Emma Turnbull |
HIS HONOUR:
1Tristan Leigh[1] on 28 September 2023, a plea hearing was conducted at the
County Court here in Melbourne. On 10 March 2023 a jury of 11 jurors unanimously found you guilty of the following charges on
Indictment No. K12466645:Charge 2, sexual penetration of a stepchild. This charge has a maximum penalty of 25 years' imprisonment.
Charge 3, sexual assault of a child under age 16 or 17 under the care, supervision, and authority. This charge has a maximum penalty of five years' imprisonment.
Charge 5, sexual assault of a child aged 16 to 17 under care, supervision, or authority. This charge has a maximum penalty of five years' imprisonment.
Charge 7, sexual penetration of a stepchild. This charge has a maximum penalty of 25 years' imprisonment; and
Charge 10, sexual assault of a child aged 16 to 17 under care, supervision, and authority. This charge has a maximum penalty of five years' imprisonment.
[1] A pseudonym name.
2Charges 2 and 7 are category 1 offences. Albeit there was some argument about whether Charge 2 was. Ultimately it does not make any difference to the sentencing situation here.
3You were acquitted on the Charges 1, 4, 6, 8, and 9 by the same jury. You were entitled to the full benefit of your acquittal verdict.
4You had one unrelated prior court appearance at Preston Magistrates' Court on 1 May 1985. You were placed on a $250 good behaviour bond. On my calculation I think you were 19 at the time.
Victim impact statements
5Uliana Sidorova[2], the victim of your criminality filed a victim impact statement dated 15 April 2023. It was Exhibit “B”. The victim impact statement was extensive and read into the record of the court. Clearly Ms Sidorova has been adversely affected by your crimes in respect of her mental health, her ability to trust people and to form relationships with other people. I take those matters that are raised by her victim impact statement into account.
[2] A pseudonym name.
6Esther Sidorova[3], your former wife and mother of Uliana Sidorova, also filed a victim impact statement which was dated 15 April 2023. It was Exhibit “C”. Similarly the victim impact statement was extensive and read into the record of the court. Esther Sidorova speaks of the breach of trust and a sense of isolation resulting from your offending. Esther Sidorova sets out the financial pressure she now faces whilst caring for three children, two of whom are yours. I take those matters into account.
[3] A pseudonym name.
Your personal circumstances
7You have recently turned 57 years of age. You are the middle child of sibship of three. Your older brother has provided extensive reference and is very supportive of you. Your younger sister is married and you have had little to do with her since she has been married, which is some time ago. Your parents are both alive and you enjoy their support.
8You grew up in Tarrengower[4] and went to primary school there. In your early high school years your family moved to the Philippines for a two and a half year period. Your father was a managing director for an Australian company which was then working and located in the Philippines.
[4] A pseudonym name.
9When you returned to Australia you went to Tarrengower[5] Tech School. Your academic and technical skills were predominantly in art and graphic design. Whilst at school you were bullied. You took up taekwondo. You were very good at sport generally, but the martial arts of taekwondo was your area of excellence. You competed at a state championship level whilst you were at secondary school.
[5] A pseudonym name.
10You finished school at Year 10 level and immediately commenced an apprenticeship as a carpenter. The life of a carpenter was not for you. You moved onto car sales jobs at Max Kirwan and Volvo. You were then a manager of a car dealership called Robert's Leisure Vehicles. You had a 12 month period where you worked in Alice Springs. Upon your return to Melbourne you moved into the finance manager role at a Holden dealership.
11You then commenced your own broker business with Freedom Choice Home Loans. This was a successful business. At this time, approximately 2005, your marriage to Kayla[6] ended in divorce and the brokerage business was wound down. You commenced then, work as a loans manager with HSCB.
[6] A pseudonym name.
12In 2008, you moved to Queensland. There you met Esther Sidorova[7], the mother of the victim in this case. In 2012 you moved your new wife Esther and Uliana to Melbourne together with your most recently born child. You commenced your business of [omitted].
[7] A pseudonym name.
13It was in 2008 whilst in Queensland that you were assaulted and received both mental health and physical injuries, and a physical injury to your back. You continued to suffer from those symptoms to the present day, as late as
August 2022, when this matter, was in its first trial. You were operated on for an L4-L5 surgery at the Austin Hospital. As an emergency patient, that first trial had to be discontinued due to your emergency surgery.14The delay between the allegations and your arrest and the final disposition has been some four and a half years. You have no relevant prior convictions and there has been no offending since that time.
15You have been prohibited from seeing your youngest children, that is, Sebastian[8], a 13 year old, and Yolanda[9], who is 10, as a result of these allegations and proven charges against you.
[8] A pseudonym name.
[9] A pseudonym name.
16You have repartnered and have the support of many who attended your trial and the plea hearing. Your parents also attended the plea hearing and I note they are here today. All provided references in support of your previous good life, and outlined the support and love you have given to each of your five biological children.
17You have been on remand for 210 days and currently in prison at Hopkins.
The circumstances of your offending
18You faced trial for a total of 10 charges over three separate offending occasions. A jury of 11, as I have said, unanimously found you guilty of five of those charges. The jury's verdict was delivered on the 10th day of the trial.
19In the first set of the four charges, you were found guilty of Charge 2, which was sexual penetration of a stepchild, and Charge 3, sexual assault of a child aged 16 under care, supervision, and authority. You were acquitted of Charge 1 and 4, which were allegations said to have occurred at the same time and place as Charges 2 and 3.
20In the second set of five charges, you were found guilty of Charge 5, sexual assault of a child aged 16 under care, supervision, and authority, and Charge 7, sexual penetration of a stepchild. You were acquitted of Charges 6, 8, and 9, which were charges alleged to have occurred at the same time and place, the allegation being that it was said to be on 20 February 2018, as Charges 5 and 7.
21On the single charge alleged to have occurred on 11 March 2018 you were found guilty of Charge 10, which was sexual assault of a child under 16 years under care, supervision and authority. The jury have accepted, in part, the evidence of your stepdaughter Uliana Sidorova, your wife Esther Sidorova, who is the complaint witness for Charge 10, and your daughter Zoe Denehy[10], who I refer to as an admission witness, to arrive at the five guilty verdicts.
[10] A pseudonym name.
22You were married to Esther Sidorova. You were the stepfather of
Uliana Sidorova for approximately 12 years at the time of the offending.
Uliana Sidorova was a 16 year old at the time of your offending.23The offending in Charge 2 is that you inserted your finger into Uliana Sidorova's vagina. You did this in the family home, on an occasion when your wife Esther Sidorova was staying at a friend's house. At the same time, you placed your hand on Uliana Sidorova 's breasts as you removed them from her bra. These offences occurred in the lounge room of the family home.
24The offending for Charges 5 and 7 occurred in February 2018. The evidence was unclear as to the precise date in February and the prosecutor conceded that the standard sentencing provisions did not apply to Charge 7 in this case. The offending in Charge 5 occurred in Uliana Sidorova 's bedroom. On that occasion, you touched her breasts, kneaded her breasts, and pulled her nipple. The offending in Charge 7 occurred at the same time and place as Charge 5. In Charge 7 the offending is you inserted three of your fingers into
Uliana Sidorova 's vagina.25The offending in Charge 10 is that on 11 March 2018 you went into
Uliana Sidorova 's bedroom, you placed your hand on her thigh and went to move your hand higher up on her leg. Uliana Sidorova stopped you from doing that and went to her mother Esther Sidorova's bedroom and complained you were touching her again.26The jury have accepted the admission evidence given by Zoe Denehy, your daughter from an earlier marriage. Zoe Denehy's evidence was that she had visited you at the Yarra Valley Motor Inn at approximately 1.30 pm on 13 March 2018. This was after you had been taken from the family home.
27Ms Denehy said you were upset, stressed and shaking, and in her words, 'not yourself'. Ms Denehy told the court you had said that Esther and Uliana had conspired about sexual allegations against you so that you would be out of the family picture, and that your younger children, Sebastian and Yolanda, could be taken to Russia by Esther.
28Ms Denehy said you admitted to doing some sexual things to Uliana, and set out some specific statements. I will quote from transcript 242:
“The word 'specifics' was mentioned and then it goes, 'Yes,
‘Do you remember the specifics that he told you?’ she said 'Yes'.
'Can you please - ', 'Yes'… gradually outline. We'll go through in your own time what the specifics are to your recollection'. She says, 'I don't remember the exact order, but to the best of my recollection I remember him, I'm pretty sure he started off with the conversation as ah, before we go into this, I just want to mention that I've never penetrated her, to which then I was shocked with what I'd just heard. And then I just started questioning, "What do you mean?" "What do you mean?" was used quite frequently during this conversation on my behalf.
‘Ah, he said that Uliana has matured and things have gotten a bit weird with her lately. She's behaving strangely and that um she's been very sexualised and that um she had been wanting um 'organisms' (as stated in the transcript).
'And that he has found that she has been looking up a lot of pornographic things and that he had noticed and that um he told me that it had occurred that he had, he had touched her boobs, and then apparently she would um move his hand down to her genital area, and he would ah finger penetrate her, and um'.
'Do you want a break?' 'Yes please, can I have a break?'
And then there was a break in the proceedings.”
29Zoe Denehy was challenged about her evidence of your conversation with her and what occurred between Esther Sidorova, Kayla, her mother, and
Dominic Bannan[11], her stepfather, before making her statement on16 March 2018. Ms Denehy’s answers to the challenge was, 'I've told the truth about the sexual allegations and what went down every single time'.[11] A pseudonym name.
30Clearly the jury accepted Zoe Denehy as a witness of truth and accuracy.
31The jury have not accepted all of the evidence given by Uliana Sidorova about sexual offending and the guilty verdicts principally accord with the evidence of Zoe Denehy, about the admissions you made to her on 13 March 2018 in the Yarra Valley Motor Inn. In respect of Charge 10, the jury accepted the evidence of Esther Sidorova, which was the corroborating evidence by way of complaint in respect of that offence. I will accept that those matters are accurate.
Sentencing considerations
32The basic purpose for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation and denunciation of your actions, and the protection of the community. In sentencing you I must have regard to a range of factors, such as the seriousness of your offending, your culpability for it, and your personal circumstances.
33I am also required to balance the interests of the community in denouncing your conduct with the interests of the community in seeking to ensure as far as possible that you as an offender are rehabilitated and reintegrated into society.
34I am also required to take into account current sentencing practices in fixing your sentence. That inquiry is directed particularly but not exhaustively to the kinds of sentences imposed in comparable cases and the statistics for those sentences. I have considered the statistics generally and the current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your case, as indeed they are from one another.
35The prosecutor referred me to the following cases for guidance on the current sentencing practices:
(a) Carr (a pseudonym) v The Queen [2021] VSCA 130;
(b) Langton (a pseudonym) v The Queen [2022] VSCA 79;
(c) Shannon Packard (a pseudonym) [1] v The Queen [2022] VSCA 128; and
(d) Norman Porter (a pseudonym) [1] v The Queen [2022] VSCA 177.
36The circumstances of the offending in each of those cases is different from the factual circumstances surrounding your offending.
37The serious offender provisions of the Sentencing Act apply to Charges 5, 7, and 10 on the indictment. Under the serious offender provisions of the Sentencing Act on your conviction and sentence to a term of imprisonment in respect of Charges 2 and 3 in particular, I am required on the sexual offence charges thereafter to regard the protection of the community from you as a principal purpose for which the sentence is to be imposed.
38If necessary, in order to achieve that purpose of protecting the community, I am empowered under s6D of the Sentencing Act to impose a sentence greater than is proportionate to the gravity of the offences. This means that the sentencing task in respect of Charges 5, 7 and 10 on the indictment is to be undertaken on the basis that the protection of the community from you is the principal for which the sentence is to be imposed. To achieve that purpose a sentence may be imposed longer than that which is proportional to the gravity of the offence considered in the light of the objective circumstances.
39Section 6E of the Sentencing Act also requires that unless I otherwise direct, with respect to Charges 5, 7 and 10 on the indictment, the sentence I impose on you is to be served cumulatively. I note here the Crown did not call for a disproportionate sentence, and for the cumulation contemplated under s6D and s6E of the Sentencing Act, allowing for the matters I have already outlined. In my view, it is appropriate to impose only the degree of cumulation to which I will subsequently refer, reflecting as it does several episodes of offending. To do otherwise may produce a sentence that is not appropriate and unjust and breach the principle of totality.
40Your offending is serious. The maximum penalty for Charges 2 and 7 is 25 years' imprisonment. Parliament has, on behalf of the community, clearly set out the level of seriousness of that offending. The indicators of the level of seriousness in this case are as follows:
(a) The gross breach of trust in respect of your victim and the mother of your victim, who was your wife.
(b) The offending occurred in the family home, which should have been a safe place for the victim.
(c) There was an age difference of some 35 years between yourself and your victim.
(d) The sexual penetration charges were committed by using your fingers described 'digital penetration', the risk of pregnancy and transmission of sexual diseases is not present in this case.
(e) You caused pain to your victim when committing the offence, the basis of Charge 7.
(f) You committed some of the offending whilst your wife and other children were in the premises, there is an element of brazen behaviour on your behalf in that offending; and
(g) You continued to offend on three separate occasions and only stopped when the complaint on the final occasion involved the authorities who intervened; in short, you did not cease the offending on your own volition.
41You conducted a trial in respect of these charges, of course that is your right. You maintain your innocence and denial of these offences to your forensic psychologist Carla Lechner, which she has prepared a report dated
25 May 2023. You deny the conversation with your daughter Zoe Denehy about making any admissions to her. You say that conversation just never happened.42Carla Lechner opined that your offending is consistent with what she described as 'deviant, hebephilic sexual interest', but stated that it was limited to the victim in this case. Ms Lechner has assessed your risk of sexual reoffending as low to moderate. Ms Lechner states, 'his offending appears to have largely context determined, in the setting of a reported strained marriage and an available sexual alternative'.
43I accept that you have been diagnosed with PTSD and major depressive disorder as a result of the assault on you in December 2008 in Queensland. The symptoms of PTSD and your depressive condition will make your time in custody more burdensome than a prisoner who has normal mental health.
44I also accept that you have ongoing pain management and mobility problems arising from your long-standing back injury which occurred as a result of the same assault. You have had back surgery as late as August 2022. You also suffer from diabetes. The physical disabilities that you suffer will make your prison time more burdensome.
45You have no prior criminal history that is relevant in this sentencing process. You have led a law-abiding life up until 2017. You continue to have support from your immediate family and friends as set out in the references which are part of Exhibit 9. You have an extensive work record. For those reasons I assess your prospects of rehabilitation as good.
46I take into account the delay between the allegations and now. I take into account this is your first time in custody. You have spent 210 days on remand, awaiting the finalisation of this sentencing process since the jury verdict. I also take into account your personal circumstances, referred to earlier in these reasons in finalising your sentence.
47As earlier noted, I cumulated those parts of the sentences that reflect the seriousness of each offence whilst at the same time considering the sentencing principles of totality to ensure that a crushing sentence is not imposed upon you.
48The sentencing principles general and specific deterrents, just punishment, protection of the community, denunciation of your actions, and your rehabilitation dictate that the only appropriate sentence is a term of imprisonment with a fixed non-parole period. If you are granted parole, that parole will further supervise your rehabilitation.
49Would you stand please?
50On Charge 2, you are convicted and sentenced to four years' imprisonment. On Charge 3, you are convicted and sentenced to six months' imprisonment. On Charge 5, you are convicted and sentenced to six months' imprisonment. On Charge 7, you are convicted and sentenced to four years' imprisonment. On Charge 10, you are convicted and sentenced to three months' imprisonment. The cumulation of those sentences is as follows: Charge 2 is a base sentence, that is, four years to that cumulated and cumulated on one another, two months from the sentence in Charge 3, two months from the sentence in Charge 5, twelve months from the sentence in Charge 7, and one month from the sentence in Charge 10, are to be cumulated on the base sentence.
51That is a total effective sentence of five years and five months. I fix a non-parole period of three years and three months. I declare you have served 210 days pre-sentence detention in respect of that sentence.
52I am going to place you on the Sexual Offender Register for life and the final matter is I declare that pursuant to s6F of the Sentencing Act that you have been sentenced as a serious sexual offender.
53Can I just ask counsel to check the arithmetic for the cumulation?
54MR CAMERON: That is correct Your Honour, from our end.
55MR DESMOND: It is correct Your Honour.
56HIS HONOUR: Yes. So in summary Mr Leigh, the head sentence is five years and five months, the non-parole period is three years and three months. You have served 210 days.
57MR CAMERON: As Your Honour pleases.
58OFFENDER: Yes Your Honour.
59HIS HONOUR: I will just have the SOR document produced and I will get him to sign. Was there anything else I need to attend to?
60MR CAMERON: Nothing Your Honour.
61HIS HONOUR: Thanks. You can take a seat Mr Leigh. Just while that is being done, counsel I just want to take this opportunity to thank both of you and your instructors for the preparation of the papers and submissions and the like for this whole proceeding, not just - - -
62MR DESMOND: Thank you Your Honour.
63MR CAMERON: You're welcome Your Honour.
64HIS HONOUR: - - - not just the plea, the trial as well.
65MR CAMERON: Thank you.
66HIS HONOUR: I will just hand those documents, the Sex Offender Register documents, Mr Desmond if you can - - -
67MR DESMOND: Does he need to sign these or - - -
68HIS HONOUR: Yes, your client needs to sign that. He has got a copy of it.
69MR DESMOND: I might get my instructor, she would be more familiar with it Your Honour.
70HIS HONOUR: Certainly, sorry.
71MR DESMOND: I think it's the last page right there.
72HIS HONOUR: Thanks. Thanks, thank you. Thank you. Yes, all right.
Mr Leigh I am not going to read out all the terms of the Sex Offender Register obligations, you will face that as something that applies to you when you leave prison. I advise you to read very carefully that document before you leave prison because a whole lot of obligations are upon you and to comply with – I will tell you they are quite restrictive on your life when you get out of jail. So be aware of them because the police will come looking. All right?73Thank you. I will adjourn now, thanks. You will remove the prisoner. Thanks.
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