Director of Public Prosecutions v Leirdal (a pseudonym)
[2011] VCC 1594
•15 September 2011
he
| IN THE COUNTY COURT OF VICTORIA | Revised |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-10-01521
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| INGEMUND JAKOB LEIRDAL (A PSEUDONYM) |
---
JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 15 September 2011 | |
CASE MAY BE CITED AS: | DPP v. LEIRDAL (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2011] VCC 1594 | |
REASONS FOR SENTENCE
---
Catchwords:
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms H. Saban | |
| For the Accused | Ms M. Dixon |
HIS HONOUR:
1 Ingemund Jakob Leirdal[1] following a brief trial you were found guilty by a jury on 30 August of this year of seven charges laid on Indictment No.Y03772278.1. Charge 2, Charge 4 and Charge 5 were allegations of incest involving respectively penile oral, anal and vaginal penetration. Charge 6 was laid in the alternative to Charge 5 and so no verdict was taken. Charge 7, 8 and 10 involve allegations of attempted penile vaginal penetration, hence attempted incest.
[1] A pseudonym.
2 You were also found guilty of Charge 3, an act of gross indecency at a time when your victim was obviously under your care, supervision or authority. Following these verdicts your counsel applied for the matter to be adjourned briefly so that the plea could be conducted before me which it was on 2 September of this year. The jury acquitted you of Charge 1 on this indictment.
3 There had been an earlier trial conducted before me and concluding on 22 June 2011 and on that occasion the jury had been unable to agree upon any verdicts though I had, pursuant to the provisions of s.241 of the Criminal Procedure Act 2009 at the end of the prosecution case directed the entry of not guilty into the records of the court in relation to Charge 9 as it then existed on the indictment, there being no evidence led in support of that allegation.
4 You have no prior convictions.
Factual circumstances
Charge 2
5 Charge 2, a charge of incest, took place when the complainant was about 12 years of age in the family home in Footscray between January 1986 and December 1987. This and the remainder of the charges were committed against your daughter Lisette Leirdal[2]. She has since married and her married name is Lisette Czarnecka[3]. Her date of birth is 11 December 1974.[4]
[2] A pseudonym
[3] A pseudonym
[4] T340
6 Your daughter was in the lounge room watching television and you walked in and came up to her. You pulled down your pants and you tried to place your penis into her mouth. You tried to force it into her mouth and she was trying to prevent that from occurring. You grabbed your penis with both hands and you tried to shove it in and she closed her mouth and moved her head away.
7 You responded by grabbing one of your hands behind her head and pushing your penis towards her and pulling her head towards you and in this way you succeeded in penetrating her mouth. You then moved backward and forward in her mouth and this continued for about a minute or two. You then withdrew and walked off. There was no suggestion that you ejaculated in her mouth.
Charge 3
8 Charge 3, gross indecency, involved your opening the toilet door and asking to see your daughter's vagina. This occurred when the family had moved to Hoppers Crossing and your daughter who was about 13 years of age declined and told you to go away. You said that you were not going to leave until she showed you and as a result of that she lifted up her top and did as you asked, showing her vagina and the incident then concluded.[5]
[5] T345
Charge 4
9 Charge 4, laid as incest, took place at Hoppers Crossing when your daughter was about 13 years of age. Her brother was at home and the two of them were watching television. You came into the lounge room and you enquired of her whether she had taken any money from your wallet and she said that she had not. You then found $50 in her bedroom and came back to the lounge room and you grabbed her and hit her across the face, causing her to fall to the floor.
10You then pulled her up by the arm and forced her to your bedroom and closed the door and there you leaned her over the bed, pulled her pants and underpants down and anally penetrated her with your penis. She told you to stop and you responded by saying, "This is what you get for taking my money". You moved your hips back and forwards for about a minute or so then withdrew and, it would seem on the materials, ejaculated. There was clearly a punitive element to this act of incest. [6]
[6]T348 and 349, 380
Charge 5
11 Charge 5, also laid as incest related to an allegation taking place also at Hoppers Crossing when your daughter was around 14 years of age. She was watching television and it was daytime. No one else was home. You came out of the shower. You approached her and struck her across the face. Again she landed on the floor. You then got on top of her and tried to pull her dress up. She struggled with you. You held her down and with one hand you then moved her underwear to the side and then placed your penis into her vagina.
12She could not recall the extent of penetration but clearly enough from the verdict and the presence of the alternative of attempt laid in relation to this event, Charge 6, the jury was satisfied beyond reasonable doubt that penetration did actually take place. Your daughter asked you, "What are you doing?" and you responded by sitting up on the couch saying, "It's your fault that I'm doing this, it's the way that you dress". You then left the room. She could not cast any real light on the duration of that act or for that matter the extent of penetration.
Charges 7, 8 and 10
13 Charge 7, 8 and 10 are charges of attempted incest when your daughter was about 14 years of age. Each are constituted by your endeavouring to place your penis into her vagina as she lay in her bed at night. On each occasion you came into her bedroom at night as she lay sleeping. Your wife was in the shower. On each occasion you lay on top of her, you pushed her legs to the side and apart and violently struggled with her in an endeavour to penetrate her. Clearly enough you did not succeed given the nature of the allegation, it being of attempt in each instance.
14On the last of these occasions,[7] your daughter fell out of bed and stood against the corner of the room. You told her to get back into bed and she refused. Your wife who was in the shower turned off the shower. That could be heard from your location and you, hearing that, desisted, saying to your daughter, "I will get you tomorrow". This was the last incident.
[7]T344
15The very next morning your daughter rode her bicycle to the station. Then she caught a train into Malvern and then went to her mother's workplace - she worked in Malvern - and there she complained to her mother. Your wife and your daughter came home that afternoon and you were confronted then with these allegations. It follows this was some time in about 1989. As is clear from your police interview your response to the allegation was to tell your wife that you would move to Queensland.
16The evidence led at trial makes clear that you denied the allegations, crying as you did so and your wife was not able to believe her daughter, nor was your son and from that point the matter was never spoken of again in the family. It was taken no further as a result of your strenuous denials. It was not then reported to the police.
17 Your daughter came forward many years later, in 2008 and made these allegations, allegations which of course you again disputed. But of course I act on the verdict on the jury and the jury was satisfied beyond reasonable doubt that you had committed these acts as described.
Maximum penalties
18Although the maximum penalty for incest has increased since these events you do not suffer the detriment of that increase. The penalty at the time which is the maximum penalty applicable here is 20 years imprisonment for the completed acts of incest, 10 years imprisonment for the attempts and three years imprisonment for the gross indecency given the aggravated circumstances particularised in that charge.
Victim Impact Statement
19Your daughter has made a victim impact statement. That statement is dated 1 September 2011. Your crimes against your daughter have had a profound and a lasting impact upon her throughout her life. This victim impact statement was read out in the course of the plea. Your crimes have impacted upon her at every level of her life, as a teenager, a youth, a daughter, a mother and as a wife.
20 She was disbelieved by her brother. She was disbelieved by her mother. Even now, many years later, she is startled by touch and by noise. She finds it hard to trust people, including her own mother. She has had problems with intimacy. Ms Czarnecka has become a protective mother courtesy of her own experiences at your hands and at one point she turned to religion, a step that had a role in her decision to cease contact with you as she reflected then on past events in her life.
21 She concludes her victim impact statement by saying the following quote:
"Since becoming a Christian I am learning through prayer and faith I will overcome all my fears, anger, aggression, insecurities, frustration and trusting issues. Thanks to God my anger is slowly diminishing and I long for the day that God will give me back my peace in my heart and for me to know that my daughter will not be subjected to an emotional and harmful rollercoaster that Ingemund has caused in my life".
22Your daughter is now 36 years of age and very clearly she has been deeply, profoundly and lastingly affected by your conduct, crimes that you chose to commit upon your very own daughter, a person whom you were duty bound to protect. I take into account the impact of your crimes upon your daughter.
23 Ms Dixon I interrupt my sentencing remarks. Throughout the plea I was told by Mr Thomas that Mr Leirdal was 72 years of age. Is that right? I reached the view that he is 71. Am I wrong in that or not?
24 MS DIXON: I will confirm that with him Your Honour.
25 HIS HONOUR: He is almost 72 as I understand it.
26 MS DIXON: If I could just approach?
27 HIS HONOUR: Yes.
28 MS DIXON: He instructs that he turns 72 in one month.
29 HIS HONOUR: Yes. Yes thank you. All right.
Mitigatiion
30In the course of the plea Mr Thomas raised a number of matters in mitigation. These include
(1) the fact that you are 71 years of age, you are almost 72 and are otherwise of good character with no prior history and nothing since;
(2) the delay since the commission dates of these offences and the process of self-rehabilitation that is demonstrated;
(3) You are facing for the first time, aged 71, an immediate term of imprisonment and the impact of any sentence which it was argued should be seen as representing a substantial portion of the period of life which is left to you.
(4) Given the various matters raised in (1) (2) and (3), the diminished role for both specific deterrence and the need for protection of the community. (5) The particular context of the offending, possessing - it was argued - very few of the aggravating factors that sometimes exist in cases such as this, with none of these events laid on a representative basis.
Prosecution
31The prosecution placed before me various authorities, either as comparable cases or containing relevant matters of principle and made a submission as to the available range of sentence falling between 11 to 14 years with a non parole period between eight and 11 years.
32The prosecution submitted that the force that was employed and the punitive nature of the anal penetration, the subject of Charge 4, made that a particularly serious example of incest. Further it was argued that Charge 5 was preceded by a strike to the face immediately before the struggle to effect penetration, occurring on the floor. Each of the attempts involved an aspect of force and the prosecution pointed to the very significant impact upon your daughter and the need to pay strong regard to general and specific deterrence.
33It was argued therefore that the aspect of force was a matter of significant aggravation and though there was a long delay it was submitted that this was hardly unusual in the context of an incest case generally and this one in particular and had but a limited mitigatory impact.
34The prosecution submitted that each one of these offences were sexual offences for the purposes of the serious offender regime set out in the Sentencing Act 1991 and that accordingly by Charge 4 on the indictment you would stand to be sentenced on that charge and thereafter as a serious sexual offender with all of the implications flowing from such a position.
Background
35Before turning to consider some of the submissions and competing submissions I turn to consider your background. You are 71 years of age, almost 72 with your birth date falling in October. You were born in October of 1939. You were born in Uruguay and you were the youngest of three children, with an older brother and sister. You lived on the outskirts of a city in what was described as a middle class background where you completed your schooling and then did four years at university, finishing when you were 22.
36You married for the first time when you were 18 years of age as a result of an unplanned pregnancy and you then moved out of home and studied and then worked as an auditor. You had a daughter of that relationship but that marriage concluded when you were about 22. You still have regular contact with that daughter via the internet, or at least you did prior to your remand by me following the jury's verdict.
37You married Blanka[8] in 1969 and then you worked as an accountant for businesses. There were two children of that relationship, Maksym Leirdal[9] who gave evidence before me who was born in Uruguay in 1971 and your victim, your daughter Lisette who was born in Australia in 1974.
[8] A pseudonym
[9] A pseudonym
38You made a new life in Australia when you were 34 years old. You attended night school at Footscray TAFE and as a result perhaps of lack of recognition of your qualifications you worked initially as a cleaner and then at the Ford factory. At the age of 37 you started to work as a tiler and you continued to do that for the remainder of your working life, working full time in a self employed capacity. You stopped working when you were 64 years of age and you have had some issues with your shoulders, having undergone operations on each of them. You have continued to work, delivering pamphlets and also as a handyman.
39Your relationship with your wife fell apart in the early 2000s and the last member of your family to have any real or meaningful contact with you was your daughter Lisette. That contact has ceased. You have no contact with your son who lives overseas. So it is then that all these relationships are lost to you and the picture that lies ahead of you is a quite forlorn one as you commence a lengthy sentence of imprisonment with little, as I can see, support from people outside your custodial setting. However there is otherwise no suggestion that you are in anything other than good health physically.
40You are 71 years of age. You have no criminal history at all. You have never been charged with any offence either before or after these events. You therefore have been “otherwise of good character” and I take that into account. However the authorities make clear and indeed your counsel concedes as much, that less weight is given to this factor in a case such as this. Nonetheless I still do pay regard to it and I take it into account in your favour.
Delay
41Your counsel spoke of the aspect of delay in this case. In that period since these offences occurred he argued and it is clear, that you have continued to work and live a law abiding life. It is said that you are not the same man who committed these offence. No doubt there is a great disadvantage being dealt with so many years after the event, both for you and for your victim as well.
42There was the opportunity for this matter to be investigated and resolved one way or the other when your daughter was 14 years of age or thereabouts and no doubt it was your attitude in denouncing her claim and in satisfying your wife and your son of the falsity of your claim that caused the matters to lay dormant for all these years. What more could your daughter do at that age and in that era other than report your crimes to her mother? She was not believed and that is because you denied vehemently her claims.
43That has produced these twins effects now of your standing to be sentenced at the age of 71 for crimes committed by you many years ago and your daughter labouring through her life with the impact of these unrecognised crimes having been committed upon her all those years ago. You lived with no stain, no shadow on your character.
44The delay between offending and sentence as often arises in this sexual domain gives no automatic right for a deduction or reduction or discount in sentence.[10] However given the passage of time and your lack of reoffence or breach of the criminal law at all I am prepared to accept that there has been a process of rehabilitation in the ensuing years that bears upon the likelihood of reoffending. It bears also upon the extent to which I emphasise the notion of specific deterrence and community protection. As your counsel argues and I accept, in a sense you are not the same man who committed these offences nearly a quarter of a century ago.
[10]See R v Nikodjevic [2004] VSCA 222, Pettiford v R [2011] VSCA 96 and Murray v R [2011] VSCA 232. See also NJD v R [2010] VSCA 84
Age
45One other consequence obviously of this delay is your growing older. Your age was raised individually as a matter in mitigation. As I have said you are 71 years of age, almost 72 and clearly I must and do pay significant regard to that fact. You are not in ill health but nonetheless the age of an offender is clearly a relevant sentencing consideration and must bear upon the severity of the effect of incarceration.
46As the Court of Appeal stated in the case of R v. Bazley (1993) 65 A Crim R 154:
"The age of an offender is no doubt a relevant sentencing consideration. It may in some cases be of considerable significance but it cannot be allowed to be a justification for the imposition of an unacceptably inappropriate sentence."
47 Your counsel referred to the Crown's submission as to range of sentence as involving a crushing sentence. Well it is clear that in an appropriate case the age of an offender does not and cannot militate against the imposition of a significant period of imprisonment.
48 Here your age is a matter of real significance to me in my task. Irrespective of your good health a person of your age commences a term of imprisonment with a risk that by virtue of your advancing age you may not see life beyond a prison setting. That of course is an important consideration. However it is not determinative of the quantum of sentence to be imposed.[11] I give attention to your age but confidence in the administration of justice has to be maintained by the imposition of sentences which adequately reflect the gravity of your crime.
[11]See R v George Iles [2009] VSCA 197
49 Clearly I take into account your age as a matter of real significance and given the conclusions that I reach as to your low risk of reoffence and good prospects of rehabilitation, I consider it appropriate that general deterrence surrenders some limited ground to the exercise of mercy in this case.[12] I do not lose sight of the fact that each year of the sentence which I am shortly to pronounce may well represent a substantial portion of the period of life left to you. I take your age into account insofar as I am able to in accordance with the various authorities, including R v Iles [2009] VSCA 197.
[12]See Iles paragraphs 32 and 33
Specific deterrence
50 Given your present age, your low risk of reoffence, as I find it, and the passage of time where you have refrained from committing any offences, specific deterrence has a greatly reduced role in the sentencing exercise. Your crimes against your daughter occurred 22 to 24 years ago. Your offending has been confined to that particular relationship and with no further outbreak of offending since the event. You are now 71 and you have otherwise lived a law abiding life.
51 There are some tensions at play here as by virtue of the serious offender regime under the Sentencing Act, by Charge 4 on this indictment you stand to be sentenced as a serious sexual offender and I am compelled by statute to regard the protection of the community from you as the principal purpose for which sentence is imposed.[13] What is clear though from the authorities interpreting those provisions is that I am still required to make an assessment of the actual need to give weight to the protection of the community and your risk of reoffence. See RNT [2009] VSCA 137 citing DDJ [2009] VSCA 115.
[13]See s.6D of the Sentencing Act 1991
52 I have concluded given the various matters raised that you pose a low risk to the community, there being an equally low risk of reoffence. I have concluded that you have good prospects of rehabilitation, indeed rehabilitation has been effected over the years. Accordingly I attach very little weight to the notion of specific deterrence and community protection in this case.
Cases
53 Your counsel, as well as the prosecutor took me to a variety of cases, some of them said to be comparable. This was to try to establish current sentencing practises. I cannot say that this was a particularly helpful portion of the plea and it ultimately demonstrated to me the individual features prominent in individual cases.
54 Clearly enough I must pay regard to current sentencing practises as they existed. That is not as hard as it may seem as there are a variety of cases referred to in the various materials placed before me and otherwise, dealing with sentences imposed for matters of this vintage. I also have to pay regard to the maximum as it existed, not as increased and not lose sight of that fact when examining some of the statistical materials or later authorities where sentences were passed in the setting of a higher maximum penalty.
55 Your counsel, in taking issue with the range provided by the prosecution described it as crushing. Well I am required to impose an appropriate sentence in all of the circumstances of the case. Mr Thomas argued that such a range of sentence as advanced by the prosecution would fail to take into account principles of totality, current sentencing practice and your age.
56 He took me to a sentencing snapshot[14] published by the Sentencing Advisory Council, Snapshot No.99 of 2010, speaking of the median sentences imposed and the median total effective sentences. It is no part of my obligation to sentence in accordance with the median sentences disclosed in those materials. Indeed focus on the median outcomes can distract me from the task at hand as is made clear in the Court of Appeal decision of DPP v. Maynard [2009] VSCA 129.
[14]Number 99 of 2010
57 Though there is clearly a role for sentencing statistics and comparable cases at the end of the day I have to fix upon an appropriate and just sentence in all of the circumstances placed before me in your individual case. The sentencing snapshot for instance tells me nothing about the plea entered or the stage of the plea, the age of the given prisoner, the age of the complainant, the nature of the violation, whether it was an isolated act or continual activity or representative in nature or accompanied by features of aggravation and if so which features, or not. It tells me nothing of the age of the accused at the time of sentence or at the time of the event or the impact upon the individual victim or anything about the circumstances of the offence themselves.
58 So it is then that there is a clear and inherent limitation in statistical material. Comparable cases are obviously of importance but again it is very difficult to find a comparable case. No case ever stands on all fours with another, nor an accused, nor a victim's personal circumstances. One could search endlessly for a matching case with a level of futility and even when found, if be found, there is no mathematical equivalence demanded in the exercise of a sentencing discretion, see Hasan v The Queen [2010] VSCA 352.
Context
59 Your counsel in dealing with the offending itself submitted that it was a single victim with events that though repeated were quite quick in duration and not occurring over a very lengthy period, that is to say over some four years, not ten or 15 years as is sometimes the case. He argued that they were not representative of nature and generally involved reasonably quick and brief activity. Well I accept all of these submissions. Your counsel did concede that there were aspects of aggravation with the force engaged and employed and the punitive nature of Charge 4 on the indictment.
60 I have read a variety of materials, including each one of the authorities to which I was referred in court. In N J D v. R [2010] VSCA 84 - that case dealt with offending much more ancient than this but with a 68 year old man standing sentence but one in very poor health. There was a guilty plea entered in that case, late though it was and only attended by limited remorse. I have looked also at DPP v. O J A [2007] VSCA 129, also DPP v. D J [2011] VSCA 250 and the helpful table of cases and penalties referred to in that later authority.
61 This is a case (DJ) that has some significance as it endorses unsurprisingly the fact that in a case of incest the use of threats or coercion or actual force and any punitive feature of the offender's motivation should be regarded as very significantly increasing the offender's culpability for what is in any case a very serious crime.
62 Such aggravating factors should be clearly reflected in the sentence imposed.[15] Of course those remarks have an application here given the force employed in this case in some of the instances and the punitive nature of the forced anal penetration of your daughter as punishment for her theft from you.
[15]See paragraph 26
63 I have looked also at DPP v. T B D [2009] VSCA 114and the table of cases attached in that decision. With each of these tables one again must exercise caution in terms of the age of the complainant, the prevailing maximum at the time as well as the variety of aggravating features referred to. Sometimes they are not present in the instant case but are in these other cases. Sometimes features of aggravation here present are absent elsewhere.
64 Again all this highlights is the difficulty of this whole process of searching for guidance from past decisions of other judges in other cases. Nonetheless I have engaged in the task and looked at the cases to which I was referred, the ones I have referred to in these reasons as well as H P v. R [2011] VSCA 251 and R B N v. R [2011] VSCA 261. Virtually each one of these decisions to which I have been referred or mentioned in the course of these reasons for sentence contains a statement of principle from the highest court in this state as to the unquestioned serious nature of the crime of incest.
65 In that most recent decision R B N v. R the president of the Court of Appeal stated:
"This Court has said often that incest is a crime of great seriousness. It is an appalling crime, involving the worst kind of breach of trust as between parent and child, and it is notorious that it causes long-term damage to the child victims whom it is the parent’s first obligation to protect."
66 I was referred also to R v. A P. Your counsel referred me to that case. True it is that case involved much more protracted offending, spanning some 20 years but it involved a more elderly prisoner and one who had pleaded guilty. Some individual sentences for individual acts as distinct from the representative charges later in that indictment measured six and seven years on a guilty plea.
67 I have looked also at the incest case summaries from 2006 to 2011 set out at 27.11.4.2 of the Victorian Sentencing Manual as well as the incest case summaries pre 2006 set out at 27.11.4.3 of that same resource, at all times bearing in mind the penalty increase which has no application to you.
General
68 You had an obligation to care for and to protect your daughter. You were an adult and her father and unsurprisingly the law regards the offence of incest as a very serious criminal offence and one that is particularly erosive of human relations. You as an adult have exploited your daughter by imposing your will, the will of an adult as against the weaker will of your daughter, a child and so it is that you have entirely warped and betrayed that relationship and involved yourself in this gross breach of trust.
69 You have in doing so caused your daughter irreparable harm and your conduct, though not as protracted as some sadly coming before the courts nonetheless was not a single event. You stand to be sentenced in relation to seven charges with that conduct spread out over some years. None of these charges are laid on a representative basis and indeed there was nothing in the material to suggest any other uncharged activity.
70 I am required to manifest the court's denunciation of your conduct and to impose a just and an appropriate punishment in all of the circumstances. I have to pay significant regard to the notion of general deterrence, notwithstanding that I have taken the view that it is appropriate to slightly diminish the weight to be given to this purpose of sentencing. The court still must send a message loud and clear to others in the community that this abhorrent conduct will not be tolerated.
71 I have indicated that specific deterrence has very little role to play in my ultimate sentence given your age, the passage of time and the conclusions that I have reached as to your low risk of reoffence and good prospects of rehabilitation. Having considered these various matters in mitigation clearly enough there is still no dispute but that a substantial term of imprisonment is called for. The question is how substantial in terms of the individual sentences, the orders for cumulation, the total effective sentence produced and the non parole period fixed.
72 Unlike many cases that I was referred to in this case there is of course no remorse at all and no discount attaching to any guilty plea. That is clearly not a matter of aggravation. You are not to be punished for running a trial, it was your right to do so and your right for your counsel to cross-examine your daughter but in so doing it is then not open to you to point to any remorse or to any of the very sizeable benefits which typically flow from a guilty plea in this domain.
73 As I have indicated by Charge 4 on this indictment you do stand to be sentenced as a serious sexual offender. For that charge and each later charge, five, seven, eight and ten you do stand to be so sentenced. That is conceded by your counsel. Pursuant to s.6D of the Sentencing Act it follows that from Charge 4 onwards I must regard the protection of the community from you as the principal purpose for which a sentence is to be imposed.
74 I have available to me the power to impose a disproportionate sentence in that regard but no one has seriously suggested that this is required and of course I do not contemplate it. Further the presumption in favour of concurrency that normally applies is swept aside for any person sentenced as a serious offender as you will be by Charge 4 on this indictment.[16]
[16]See s.6E of Sentencing Act 1991
75 I have obviously considered the gravity of each of the charges for which you have been convicted by this jury. Each of the acts of incest involved sexual penetration in the way alleged. I judge Charge 4 to be the most serious of the acts, involving as it did penile-anal penetration with a level of force and done punitively. So too was there a level of force in relation to Charge 5, penile-vaginal penetration and Charge 2, whilst not involving the same level of physical violence still involved a level of force or compulsion.
76 Almost 25 years may have passed but the seriousness of your offending is manifest. You now stand to be punished for what you did to your daughter all those years ago. Would you stand up please?
77 On Charge 2, incest committed by introducing your penis into the mouth of your daughter you are convicted and sentenced to four years' imprisonment. On Charge 3, gross indecency you are convicted and sentenced to nine months' imprisonment. On Charge 4, incest constituted by the anal penetration of your daughter you are convicted and sentenced to seven years' imprisonment. I sentence you on that and each remaining charge as a serious sexual offender.
78 On Charge 5, incest constituted by penile-vaginal penetration of your daughter I convict and sentence you to five years' imprisonment. On Charge 7, attempted incest you are convicted and sentenced to two and a half years' imprisonment. Charge 8, attempted incest you are convicted and sentenced to two and a half years imprisonment. On Charge 10, attempted incest likewise you are convicted and sentenced to two and a half years' imprisonment.
79 As I have indicated from Charge 4 on this indictment you stand to be sentenced as a serious sexual offender and I do so sentence you. I must regard the protection of the community as the principal purpose of sentencing. I have not however, as I have made clear, acted pursuant to s.6D(b) of the Sentencing Act. I regard myself as bound to pass only proportionate sentences which is what I have done.
80 Under the regime for serious offenders unless otherwise directed these various sentences passed upon you from Charge 4 onwards would be served cumulatively upon other sentences and upon each other.[17] This would of course lead to a staggering head sentence. I still must give some real weight to that statutory injunction upon me.[18]
[17]See s.6E of Sentencing Act 1991
[18]See DPP v HPW [2011] VSCA 88
81 This statutory presumption of cumulation has an evident object and one that is not to be defeated by my simply exercising a discretion to “direct otherwise”. This would compromise and undermine the legislative policy. Therefore I must give weight to that presumption and the nature of your offending[19] but it is equally clear though that the presumption in favour of cumulation in this area does not in any respect affect my duty to consider and apply the principal of totality.
[19]See DPP v HPW [2011] VSCA 88
82I must give consideration to the overall affect of the sentences imposed by me and I have done so and I have also engaged in a last look at the overall effect in an endeavour to avoid a sentence that might be described as crushing. Nonetheless there is still a requirement here, quite aside from the presumption in favour of cumulation, to recognise the differing acts and the differing impact of those acts upon your victim.
83This is not, as is often the case, a situation of a variety of acts occurring on one particular day or occasion tightly grouped as a single episode. These charges represent quite separate activities occurring on quite separate days, occasioning quite separate indignity to your daughter and this must be adequately reflected in the orders for cumulation. Accordingly I do otherwise direct and I do by pronouncing the following cumulation orders.
Cumulation
84I direct therefore that the base sentence is that which is imposed in relation to Charge 4, namely seven years imprisonment. I direct that 12 months of the sentence imposed on Charge 2, 24 months of the sentence imposed on Charge 5, six months of the sentence imposed on Charge 7, six months of the sentence imposed on Charge 8 and six months of the sentence imposed on Charge 10 be served cumulatively upon each other and upon the base sentence. The sentence on Charge 3 will be served concurrently with all other sentences.
85This results in a total effective sentence of eleven and a half years imprisonment or 138 months.
Non parole period
86I direct that you will not be eligible for release on parole for the period of seven years or 84 months. Have a seat Mr Leirdal.
Section 18
87You have been in custody since 30 August 2011, a period of sixteen days. I order that pursuant to s.18(1) of the Sentencing Act that this period of sixteen days be reckoned as already served by way of presentence detention pursuant to this sentence and that that period be entered in the records of the court.
Section 464ZF
88I have been requested to make a forensic sample order pursuant to the provisions of s.464ZF of the Crimes Act. You do not object to the making of such an order and in the circumstances, given your lack of opposition and the nature of this offending and the fact that I find it to be in public interest to make such an order on Charge 2 I pronounce pursuant to s.464ZF of Crimes Act that you undergo a forensic procedure for the taking of a scraping from the mouth in accordance with sub division 30(a) of Part 3 of the Crimes Act until a sample of sufficient standard is obtained for placement on the database.
89Notwithstanding your present consent I must warn you that when the time comes for the taking of this forensic sample should you not then consent the authorised officer would be entitled to use reasonable force to take such a sample.
Sex Offenders registration Act 2004
90Each of the matters for which you have been found guilty are Class 1 offences pursuant to the Sex Offenders Registration Act 2004. It follows that you have been sentenced for registrable offences and pursuant to s.34 of the Sex Offenders Registration Act you must comply and continue to comply with your reporting obligations imposed under that act for the remainder of your life. This is conceded by your counsel.
91I will shortly have handed to you a document that explains the terms of that act and the conditions which will apply to you, including the reporting of your personal details to the Chief Commissioner of Police upon your release from custody and thereafter for the balance of your life. You will also see from this document that this act of parliament imposes various other prohibitions upon you in the future, one of which is a prohibition upon your gaining any employment in any child related activity which is widely defined under that Act.
92To do so would constitute a serious criminal offence as indeed would very many breaches of any of your obligations under this act. You should make yourself familiar with the terms imposed by this order. I will ask you shortly to sign an acknowledgement of the document that comes to you to explain this material.
93Ms Dixon, Ms Saban are there matters that I've overlooked?
94MS SABAN: No Your Honour.
95MS DIXON: No Your Honour.
96HIS HONOUR: Look I've sat in your position often enough in the past and had judges deal with multi charge indictments or presentments. Do you understand each of you the individual terms that have been imposed, the cumulation orders, the intended affect and the non parole period?
97MS DIXON: Yes.
98MS SABAN: Yes Your Honour.
99HIS HONOUR: Yes all right. Well we'll just wait for that document to be printed out then I'll ask for that to go to Mr Leirdal. Ms Dixon you understand the purpose behind that document? When you see it you'll see it's quite a lengthy document, it goes into all manner of the obligations. It is not necessary for him to peruse or read the entire document now, it is to provide evidence of my satisfaction of the requirements under the Act that such a document - - -
100 MS DIXON: Yes.
101 HIS HONOUR: - - - has been served upon him.
102 MS DIXON: Yes.
103 HIS HONOUR: You understand that?
104 MS DIXON: Yes.
105 HIS HONOUR: Yes all right thank you. We'll just wait for that to be printed out. Do you want me to leave the Bench.
106 ASSOCIATE: It shouldn't take too long.
107 HIS HONOUR: All right.
108 ASSOCIATE: Yes if you could leave the bench Your Honour, we've got some problems with the system.
109 HIS HONOUR: I can see there's an error message flashing upon the screen so what I'll do is I'll leave the bench. I think just - Mr Leirdal should just stay in court for the moment and I'll come back on as soon as I'm told that that's available.
(Short adjournment.)
(Upon resuming.)
110 HIS HONOUR: Yes I understand that document has been printed out Ms Dixon so we'll have that taken down to your client, thank you. Yes that's been signed?
111 ASSOCIATE: Yes Your Honour.
112 HIS HONOUR: Yes all right well that acknowledgment has been signed Ms Dixon. Are there any other matters at all or not?
113 MS SABAN: No Your Honour.
114 HIS HONOUR: Yes all right. Remove Mr Leirdal please. Yes 10.30 tomorrow please.
- - -
0
15
0