Director of Public Prosecutions v Leishman

[2023] VCC 213

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-01574

DIRECTOR OF PUBLIC PROSECUTIONS

v

PETER LEISHMAN

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JUDGE:	HER HONOUR JUDGE BLAIR
WHERE HELD:	Melbourne
DATE OF HEARING:	23 November 2022 & 9 February 2023
DATE OF SENTENCE:	21 February 2023
CASE MAY BE CITED AS:	DPP v Leishman
MEDIUM NEUTRAL CITATION:	[2023] VCC 213

REASONS FOR SENTENCE
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Subject:Criminal Law - Sentencing

Catchwords:              Plea of guilty – Sexual penetration of a child under 16 – Indecent act with a child under 16 – reasonable prospects of rehabilitation – poor mental health – Verdins limb three

Legislation Cited:      Sentencing Act 1991 ss 5, 6AAA, 6E, 14(1), 18.

Cases Cited:Clarkson v The Queen [2011] VSCA 157; Sayer v R [2018] VSCA 177; Ross v The Queen [2022] VSCA 149; Worboyes v The Queen [2021] VSCA 169

Sentence:                  Imprisonment for a period of 6 years NPP 3 years and 4 months

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr Nicholas Batten	Jack Mighell OPP
For the Accused	Mr Raj Bhattacharya	Ellen Murphy VLA

HER HONOUR:

1Peter Leishman on 23 November 2022 you pleaded guilty on indictment K12533421.2 to two rolled up charges of sexual penetration of a child under 16 and one charge of indecent act with a child under 16 years. You have both relevant prior convictions and subsequent matters.

Circumstances of Offending

2The summary of prosecution opening was tendered and marked exhibit A at your plea hearing. This document sets out the agreed factual basis of your offending, what now follows is a summary of those circumstances. At the time of your offending, you were aged between 39 and 44 years of age and you lived in the Warrnambool area. You offended against two young girls. Your first victim, Dawn James,[1] was between 5 and 10 years of age and she lived with her mum, dad and older siblings. Your second victim, Cora Mullins,[2] was between 7 and 10 years of age and lived with her mum Gail Mullins[3] and her older sisters.

[1] A pseudonym.

[2] A pseudonym.

[3] A pseudonym.

3Your offending took place over 5 years from 1993 to 1998. This is now 25 to 30 years ago. You met Gail Mullins via a community organisation in 1993. You both volunteered there on Friday nights and became friends. When you became homeless, Gail Mullins allowed you to live at her home for a short time until you were able to find your own accommodation at a local caravan park.

4Gail trusted you to look after the children and you regularly babysat Cora. Dawn and Cora were friends and Dawn would often be at the Mullins home. You took the children bike riding and to the races in Geelong and Warrnambool. You also took them swimming after you moved to a local caravan park. Dawn’s mum, Janet,[4] met you via her friendship with Gail Mullins.

[4] A pseudonym.

5Charge 1 is a rolled up charge encompassing 2 acts of digital penetration on separate occasions. The victim was under 10 years old which is an aggravating factor.

6Sometime between 28 March 1993 and 27 March 1995, Dawn and her sister were being babysat by you at a caravan. Dawn was aged between 5 and 7 years. At the time you were as dating a woman who offered to take the two girls for a walk. Dawn didn’t want to go and stayed at the caravan with you.

7You offered Dawn some ice-cream which she accepted. You sat next to her whilst she was eating the ice-cream and rubbed her leg saying “is this ok?” Dawn froze. You continued to rub her leg and put your hand into her tracksuit pants and under her underwear. You then touched Dawn’s vagina and penetrated her vagina with your finger. You continued to rub Dawn’s vagina until your friend and Dawn’s sister returned. Dawn did not tell anyone about your offending at the time. This incident is part of charge 1 sexual penetration of a child under 16.

8Sometime between 28 March 1995 and 27 March 1997, when Dawn was aged between 7 to 8 years, you took Dawn, and two other girls to the Warrnambool Speedway. It was cold and you had a blanket. Dawn moved to sit next to you, however you moved her so that she was sitting between your legs. You used the blanket to cover both yourself and Dawn and then you put your hands in her underpants and rubbed her vagina. You then put your fingers in Dawn’s vagina and asked her if she was okay and if she was warm. Dawn did not tell anyone about the incident at the time. This incident is part of charge 1 sexual penetration of a child under 16.

9On a number of occasions Dawn was at Gail Mullins’ home playing with Cora. You would regularly visit. You would hug Dawn and push your body against her. You would ask “aren’t you going to give me a kiss” and you would always try to touch Dawn on her genital area and would pinch and smack her on the bottom. You would also frequently tongue kiss Dawn. On one occasion when Gail had left the room you grabbed hold of her in the loungeroom and stuck your tongue in her mouth. You held Dawn so tightly she could not get away. On another occasion you did the same thing in the kitchen.

10Charge 2 is a rolled up charge encompassing 2 acts of sexual penetration on a single occasion. Dawn was under the your care supervision or authority at the time of your offending which is a circumstance of aggravation.

11Between 28 March 1995 and 31 December 1998, when Dawn was between 7 and 10 years of age she was being looked after by Gail Mullins. Gail needed to go to church so dropped off Dawn to be looked after by you at your flat. You offered to watch a movie with Dawn. Whilst she was looking through your movie collection you touched her on the breasts and vagina under her clothing. You then led her into your bedroom and pulled her pants down to half way down her thighs. You rubbed your hands over Dawn’s vagina and inserted your fingers in her vagina and moved your fingers around for a number of minutes. This incident is part of charge 2 sexual penetration of a child under 16.

12You then pulled your own pants down. You removed your fingers from Dawn’s vagina and rubbed your erect penis over her vagina. Your penis penetrated past her labia but not into her vaginal canal. This incident is part of charge 2 sexual penetration of a child under 16.

13Dawn began to ‘freak out’ and tried to push you off and protested. She was petrified. You tried to kiss her on the mouth but she moved away. A short time later you got off and she went back into the lounge room. Dawn then asked you if she could go outside and ride a bike so she could get out of the flat. Not long after this Gail Mullins returned. Dawn said nothing to her because she was scared.

14Between about 9 May 1993 and 31 December 1996, when Cora Mullins was between 7 and 10 years old she would attend at the Figtree Caravan Park with her friends to swim in the pool. Often, you would be at the pool and would swim up behind Cora and pick her up out of the water by placing your hands just beneath her breasts and between her bottom and vagina touching this area over her bathers. This occurred approximately 10 times over about a 3-year period.

15On one occasion in the pool you touched Cora’s breasts and bottom in this way. Afterwards she was in the change rooms with a female friend and had a memorable conversation with her friend who was upset. This incident is charge 3 indecent act with a child under 16.

16When you were living with her family, you would often invade Cora’s ‘personal space’. You touched her on the shoulder and moved your hands towards the top of her breast. You would also put your hands on her hips slightly above the groin area under the guise of tickling or playing. When Cora was alone with you, you often placed your hand on her upper inner thigh. She would get up and move away.

17In about 2013 Dawn told her sister Eleanor[5] that you had abused her during her childhood. On 20 June 2016 Dawn told her partner that you had sexually offended against her. Later that day she reported the matter to the police and made her first statement.

[5] A pseudonym.

18As part of their investigation police approached the second victim who made a statement on 13 December 2016 disclosing the offending subject of Charge 3.

Arrest and interview

19On 12 December 2016 you were interviewed at Malvern Police station. You were not charged for this offending until 19 August 2019, which is a delay of just under 3 years. I will say something further about this period of delay in due course.

Nature and gravity of offending

20Mr Leishman clearly your offending is very serious as has been properly conceded by your counsel.  Sexual offending against children is abhorrent. Children are one of the most vulnerable groups in society and there is a presumption that children will be harmed and must be protected from sexual exploitation and premature sexual experience of all kinds.[6]

[6]Clarkson v The Queen [2011] VSCA 157

21The maximum penalties applicable to your offending, are both the starting point and an important yardstick when considering the objective seriousness of what you have done. In this regard the maximum penalty for charge 1 sexual penetration of a child under 16 is 25 years imprisonment, this is because your victim was under the age of 10 years at the time you offended against her. The maximum penalty for charge 2 sexual penetration of a child under 16 who was under your care, supervision or control is 15 years imprisonment, and for committing an indecent act with a child under 16 the maximum penalty is 10 years imprisonment.

22Further, in assessing the nature and gravity of your offending I take into account that, Dawn was aged between 5 to 10 years and that Cora was aged between 7 and 10 years. You were between 39 and 44 years of age.  This represents a significant difference in age. Both girls were vulnerable and were often left in your care. Your offending occurred in circumstances where you had befriended their respective mothers. Your offending represents a gross breach of trust, firstly because of your victims very young ages but also as a result of your relationship with each of them. Your offending, subject of charges 1 and 2 involved penetrative acts which were repeated and depraved .

23These two charges are, 'rolled-up' charges. This allows multiple instances of similar offending to be dealt with in a single charge and simplifies my task in formulating an appropriate sentence. When considering the totality of your offending I take into account that you offended over approximately five years. You offended against two victims, there were four separate incidents of abuse, which have given rise to the three charges you now face. These four occasions of offending have occurred against a backdrop of uncharged acts. You will not be sentenced for any uncharged offending, however, the objective gravity of your offending is increased because your conduct was not isolated and the harm to both of your victims was greater as a result of the persistent nature of your behaviour.

Victim Impact Statements

24Two victim impact statements were tendered on the plea and marked as exhibits D and E. Dawn Miles[7] (formerly Dawn James) read her statement to the court. It is apparent that your offending has had a devastating and lifelong impact upon her. As a result of what you did, Dawn turned to drugs and alcohol to numb her pain. Dawn continues to suffer poor mental health until this day and has spent years in counselling to try and forget.  Her pain and anguish was clearly and powerfully expressed in her statement and poem.  I hope that through your plea of guilty and your acceptance of responsibility for what you did to her, Dawn can move forward now that her pain and suffering has been validated and vindicated.

[7] A pseudonym.

25Cora Mullins described in her statement, that you robbed her of her ability to trust. This has negatively impacted her ability to engage and maintain relationships that are healthy, positive and strong. The process of exposing your offending and having you account for it  has helped Cora to heal and she feels relief in justice being served for the acts you perpetrated against her that were kept secret for many years.

26I have taken both of these victim impact statements into account in sentencing you.

Personal circumstances

27You are now 69 years of age. You were born in Warrnambool, the eldest of five children and have three younger brothers, and a younger sister who died from ill health. Your parents are both deceased. Your father died 15-20 years ago, and your mother died 25 years ago from a stroke. When you were 16 years old, your parents separated due to your father perpetrating violence against your mother. Your father was a heavy drinker who was a short-tempered and angry man. He was not only physically abusive towards your mother but also towards you and your siblings. He sexually assaulted your sister and was charged as a result. At the age of 14 you physically stood up to your father and demanded the abuse stop.

28Following your parents’ separation, you, your mother and your siblings moved to Melbourne. You had occasional visits with your father until the age of 19, and then little contact with him from then onwards. Once your family moved to Melbourne, you and two of your siblings lived in a boarding house whilst your mother lived with your two younger siblings in a unit that was close by. This was the only way your mother could afford to accommodate you all. This living arrangement continued for the next few years until you turned 21. At this time your mother re-partnered and decided to travel, leaving you and your siblings to look after yourselves.

29Amidst the violence and chaos within the family home you were able to enjoy a close bond with your mother. You often protected her from your father and she was your confidante and closest family member. You lived with one of your brothers for a brief time but otherwise, you have did not have close or regular contact with your mother or your siblings during your adult life.

30Apart from repeating one year of primary school you had no particular difficulties in the primary school environment. However, when you attended a technical college for secondary school, you were bullied by other students. You supported and stood up for another student with a disability and this also made you a target. You left school part way through year 10, after your mother left your father and you and your family moved to Melbourne. You returned to school later in life and participated in adult education in 2020 but you struggled with the work such that you believed you might be illiterate.

31After leaving school as a youngster you have worked on and off. At the plea hearing before Judge Tolhurst in March 1985 it was put that you had worked at the Portland Woolsheds for 6 to 8 months and then got a job as a farm labourer for a period of 3 years[8]. In addition, you had employment at General Motors Holden where you worked for 18 months. You have had periods of unemployment and periods where you worked as a plumber and handyman. Your last job was at Melbourne Clutch and Brake where you worked for approximately 8 years.

[8]Exhibit B

32For most of your adult life you have lived in Victoria, except for two and half years where you lived in South Australia in your mid to late 20s, and three years in Queensland in your late 20’s to early 30’s. You have mostly lived in boarding houses.

33You have had several intimate relationships and have fathered two children. One of these relationships was formalised through marriage, and for around five years you lived with your wife and child in private rental accommodation. You do not have contact with any of your former partners or your children.

34Over the years you have struggled with alcohol abuse. You began drinking when you were around 17 years of age. Your alcohol consumption increased particularly in your late 20’s. Alcohol was readily available and encouraged in your workplace. At times when you have been unemployed you have consumed methylated spirits and orange juice to satisfy your dependence. Your alcohol consumption has caused you significant problems in your life, such as dismissal from employment, the demise of your marriage and other relationships and more significantly lasting and serious mental health issues.

35An assessment by clinical neuropsychologist Julie Garner in 1993 found “In summary, consistent with his history of alcohol and perhaps additional effects of his apparent traumatic head injuries, Peter displays some signs of impaired abstract verbal reasoning and rigidity in thinking, attentional difficulties including impaired visual scanning, difficulty sustaining attention, and severely reduced immediate memory span, moderately slowed speed of thinking, very marked difficulty learning new information and apparently some difficulty in controlling his frustration.” As a result of this assessment Ms Garner suggested her report be considered by the Department of Social Security. This occurred and you were considered eligible for a disability pension from this time.

36Your current offending commenced around the time of this assessment in 1993 and spanned five years until 1998. During this time you had returned to live in Warrnambool. Apart from some casual work as an usher at Warrnambool speedway you have not worked in paid employment for many years. You returned to Melbourne and again resided in boarding houses in the metropolitan area. Your social life has largely revolved around your residential setting and I was told you often cooked meals for other residents. Another significant social outlet has been your participation in the Choir of Hard Knocks where you remained a member for 11 years. You are a practised singer and guitarist, and you also play the ukulele. More recently, prior to your incarceration, you had joined another choir.

Prior history and Subsequent offending

37You have admitted three prior convictions. Two of these are highly relevant. In 1988, you were sentenced to 12 months imprisonment for a single count of indecent assault and in 1985, you were sentenced to 2 years with an 18 months minimum for two charges of indecent assault. The sentencing remarks and the indictment from the 1985 matter were tendered by the prosecution and marked as exhibit B. It appears you had been charged with sexual penetration offences involving two girls under 10 and a charge of indecent assault. You pleaded guilty to the alternative charges of indecent assault involving the first two charges and there was a directed acquittal on the third charge.

38Your prior convictions cannot be used to aggravate penalty or for the purposes of double punishment however they do demonstrate persistent lawlessness and a propensity on your part to commit particular crimes and so inhibit the weight that can be put on mitigatory matters.

39It cannot be said that in the years that have elapsed since your offending that you have been offence free. You have a subsequent conviction for possession and production of child abuse material (“CAM”) from 2007 for which you were sentenced to an 18 month Community Correction Order. As part of this CCO you participated in a group based sex offender program.

40Additionally, in 2019 you pleaded guilty to further charges involving the accessing and possession of CAM which resulted in a total effective sentence of 26 months and a 2 year CCO. 11 months was ordered to be served immediately and 15 months was suspended under a Commonwealth Recognizance Release Order (“RRO”). The reasons for sentence in that matter were tendered by the prosecution and marked as Exhibit C.[9]

[9]Exhibit C the sentencing reasons of Her Honour Judge Sexton 13 March 2019.

41Like your prior convictions your subsequent offending cannot be used to aggravate sentence or doubly punish you however, it is generally relevant in terms of your  rehabilitation. In your case your  history reveals a concerning propensity to engage in sexual offending against children and you have a subsequent history that reveals an ongoing interest in pre-pubescent child abuse material. You have been diagnosed as a paedophile and you identified yourself as a monster and admit that you need help.[10]  

[10]Forensicare report Dr Sophie Reeves dated 25/01/23 [28]

Serious Offender Provisions

42As a consequence of your three prior convictions for indecent assault in 1985 and 1988 for which you were sentenced to imprisonment, and notwithstanding that these matters were dealt with in excess of 30 years ago, by virtue of sub clause (c)(i) of Schedule 1 of the Sentencing Act they are considered to be relevant sexual offences for the purposes of the Serious Sexual Offender provisions.  This means that community protection becomes the predominant sentencing purpose.

43Pursuant to s6F of the Sentencing Act 1991 I cause to be entered into the court records that for each of the Charges 1 to 3 on indictment K12533421.2 you are to be sentenced as a serious sexual offender. I note that s6E applies and that every term of imprisonment imposed by a court on a serious sexual offender for a relevant offence must, unless otherwise directed by the court, be served cumulatively on any sentence of imprisonment imposed on that offender, whether before or at the same time as that term. That section must, however, give way to some extent to the principle of totality.

44The prosecutor, Mr Batten, submitted that the Crown were not seeking a disproportionate sentence.

Totality and delay

45The principle of totality and the consequences of delay have application in your case.  It is relevant both with respect to the total effective sentence I must impose for the three charges and also by reason of your subsequent offending. [11]

[11]Sayer v R [2018] VSCA 177

46A chronology is essential to understanding the application of these sentencing principles in the circumstances of your particular case. As mentioned previously the offending currently before the court occurred between 1993 and 1998 (‘the current offending”). In 2007 you were convicted of produce and possess CAM and sentence to a CCO. On 12 December 2016 you were arrested by appointment and interviewed in relation to the current offending. You were not charged at this time. On 10 August 2017, you were arrested for accessing and possessing CAM that was said to have occurred between 2014 and 2016. On 13 March 2019, Her Honour Judge Sexton sentenced you to a total effective sentence of 26 months imprisonment and a 2 year CCO. You were required to serve 11 months and 15 months of your sentence was suspended pursuant to a Commonwealth RRO.

47On 19 August 2019, whilst you were serving the custodial component of Judge Sexton’s sentence you were finally charged with the current offending. This was after an inadequately explained delay in the order of 3 years. The committal mention of the current offending occurred on 24 January 2020. Three weeks later on 12 February 2020, you were released from gaol having served the custodial component of the sentence imposed by Judge Sexton. At this time you commenced the 2 year CCO imposed by Her Honour. On 26 July 2021, you were committed for trial to this court on the current offending. In February 2022, you successfully completed the CCO imposed by Her Honour Judge Sexton.[12] As a consequence of the pending nature of the current charges you were not eligible for sex offender treatment from the Forensic Intervention Services.[13]

[12]Forensicare report Dr Sophie Reeves dated 25/01/23 [34]

[13]Forensicare report Dr Sophie Reeves dated 25/01/23 [35]

48Although it cannot be said that the current offending and the subsequent offending arose out of the same or similar circumstances, had you been charged in a more timely manner this matter could have been dealt with at a time more proximate to the offending dealt with by Her Honour Judge Sexton. As a result of the delay you have missed any opportunity for concurrency. Had you still been serving the custodial component of the sentence imposed by Judge Sexton the court would likely  have been required to fix a new single non parole period. [14]

[14]s.14(1) Sentencing Act Vic 1991

49Further to this, the delay in your case has interrupted your rehabilitation through your ineligibility for a rehabilitation program you desperately require. The delay has also resulted in your return to custody after being at liberty for 3 years which must be extremely difficult. I take into account the effects of the delay and the principle of totality in your favour to the extent I am able in your case.

Mental health

50In preparation for your court hearing in 2019 you undertook assessment with psychologist Simon Candlish and neuropsychologist Laura Scott. The report of Mr Candlish was not relied upon by your counsel but was tendered by the prosecution and marked exhibit F. Although Mr Candlish conducted a very thorough risk assessment he did not know of the current offending. I have given limited consideration to his findings in the circumstances.

51The assessment by Laura Scott had a different focus and remains relevant for the purposes of my sentencing task. It is relied upon by your counsel and was tendered on your plea as exhibit 1. Laura Scott gives a number of opinions including;

(a)   Your neuropsychological profile is characterised by severe deficits in memory function affecting new learning, retention and retrieval of information. In addition you demonstrate mild weaknesses in verbal skills as well as aspects of executive function. This is seen against your background of relatively preserved basic attention, simple working memory, processing speed and visuospatial intellectual abilities. Irregular word reading and vocabulary are also intact while other language abilities are reduced. Behaviourally you present as somewhat disinhibited and rigid in your thinking and you present with a moderate degree of anxiety.

(b)   You present with evidence of an acquired brain injury (ABI) although the aetiology is difficult to determine precisely based on the information available. The possibilities include past traumatic brain injuries, alcohol related brain injury and cerebrovascular disease.

(c)   Overall you demonstrate clear evidence of significant cognitive impairments even though the exact cause of those impairments are not clear and are likely to be multifactorial.

52At your plea on 23 November 2022 there was limited up to date evidence as to the impact of your background and mental health issues in relation to the current offending, accordingly I ordered a Forensicare psychological report. On 23 January 2023, the court received a comprehensive psychological report from Dr Sophie Reeves. Dr Reeves assessed you, she had reviewed the previous reports to which I have referred; a report from clinical psychologist Michael Bilyk to which I will turn shortly; and she also had the benefit of a conversation with your former Corrections Officer.

53Dr Reeves undertook a risk analysis and was of the opinion that your risk of perpetrating further sexual offences was moderate. Given your history it was her view that any further offending by you would more likely be from viewing further CAM. She did not however, completely discount the possibility of future contact offending rather she considered this would be less likely. Dr Reeves was also of the opinion that you met the criteria for a paedophilic disorder as you present with a sexual interest in children and a history of accompanying sexual offending against children and sexual fantasies involving children that are long standing and have impacted your functioning. She made a number of recommendations for your ongoing treatment and I intend to forward her report to Corrections in the hope that her recommendations will be followed.

54On the basis of these psychological and neuropsychological opinions your counsel submitted that the third limb of Verdins was enlivened. Mr Batten for the prosecution did not take issue that in your circumstances general deterrence should be moderated somewhat as a result of the impact of your impairment at the time of sentencing. I accept these submissions.

55Your counsel also submitted that limbs 5 and 6 of Verdins were enlivened in your case as a result of the opinion from Laura Scott.[15] The current state of the evidence particularly from Dr Reeves is that “From his account he appears to have adjusted to the prison environment without any major difficulties and is not currently receiving mental health support from prison mental health services” [16] and that “During his most recent period of incarceration in 2019, only a handful of incident reports were generated, which were for minor medical incidents”.[17] In my view I am unable accept that limbs 5 and 6 of Verdins are in fact enlivened at this time.

[15]Neuropsychological report of Laura Scott dated 26/10/18 p 20

[16]Forensicare report Dr Sophie Reeves dated 25/01/23 [48]

[17]Forensicare report Dr Sophie Reeves dated 25/01/23 [34]

56As to your counsel’s submission that the principles of Bugmy should apply in your case, I do not accept that there is sufficient evidence before me to make such a finding. I do however, take into account your background of exposure to domestic violence and your exposure to your father’s sexual abuse of your sister as very likely having had a negative impact upon you in your formative years. I do not find that this impact is such that it results in a reduction in your moral culpability for the offending before the court.[18]

[18]Ross v The Queen [2022] VSCA 149

Rehabilitation

57In terms of rehabilitation I find that your prospects of reform are reasonable. I make this finding despite your considerable offending history. And I make this finding for several reasons;

58First, when you were released from custody in 2020 you undertook your own counselling via at least two mental health care plans from your GP. This counselling was with clinical psychologist Michael Bilyk. You completed a total of 13 telephone consultations (no doubt due to COVID) from April 2020 until February 2021. You disclosed your history of sex offending to Mr Bilyk who “engaged a cognitive behaviour therapy approach toward exploring sexual offence behaviour.” In addition, you reported to Mr Bilyk that you “remained under the supervision of Corrections Victoria for historical sex offence matters.” [19]

[19]Psychological report of Michael Bilyk, Clinical Psychologist dated 14/11/22

59Second, your statements to Dr Reeves that you acknowledge that you possess deviant sexual interest and that you require help and are motivated to engage in treatment.[20]

[20]Forensicare report Dr Sophie Reeves dated 25/01/23 [36]

60Third, your exemplary compliance with past Community Corrections Orders and your good conduct in gaol.[21]

[21]Forensicare report Dr Sophie Reeves dated 25/01/23 [34]

Plea of guilty

61I accept your plea, although it was not early, has significant utilitarian value in that it has spared the victims the trauma of giving evidence at trial. Additionally, it has spared the court the time and expense of what would have been an emotional and lengthy trial.

62Although there have been inroads made by the court into the backlog of cases left in the wake of the COVID-19 pandemic, what the Court of Appeal have said in the case of Worboyes,[22] remains relevant.  I therefore give greater weight in mitigation to your plea of guilty recognising that it is a plea that has eased the burden of the backlog of trials.  Accordingly, I propose to allow a significant discount for your plea.

[22]Worboyes v The Queen [2021] VSCA 169 at [39]

63I consider that your plea of guilty, your statements of remorse and acceptance of responsibility by you, for your offending to Dr Reeves are indicative of genuine remorse.

Sentencing principles

64I consider that the relevant sentencing principles that must be applied in this case are general and specific deterrence, albeit they are to be somewhat moderated as a result of my findings pursuant to the principles in Verdins.  Your offending must be denounced by the court, and I do so in the strongest terms possible.  Further I take into account the principles of community protection as I am required to  pursuant to the serious sexual offender provisions that apply in your case. Just punishment, parsimony, proportionality and rehabilitation are also relevant in the sentencing matrix.

65Mr Leishman, after consideration of all of the above matters, including the oral and written submissions of both your counsel and the prosecution, the victim impact statements from Dawn James and Cora Mullins, and all of the tendered material, I have come to the view that the only just and appropriate sentence that can be imposed for the serious offending before the court is one of imprisonment.

66As to the length of the sentence I am about to impose I have had regard to the Sentencing Advisory Council sentencing statistics, in so far as they are able to be of assistance and I have also had regard to comparable cases from both this jurisdiction and the Court of Appeal.

#	Charge	Sentence		Cumulation
1	Sexual penetration of a child under 16 rolled up charge 2 occasions	4 years 9 months		Base
2	Sexual penetration of a child under 16 rolled up charge 2 occasions	3 years 9 months		12 months
3	Indecent Act with a child under 16	10 months		3 months
Total effective sentence   6 years

67Mr Leishman in relation to the offending before the court I sentence you as follows:

68I now turn to the issue of parole. The purpose of parole is to provide for mitigation of punishment in favour of rehabilitation through conditional release where appropriate. A non-parole period is the minimum time that I determine justice requires you must serve, having regard to all of the circumstances. I order that you serve a period of 3 years and 4 months imprisonment before becoming eligible for parole. In setting the minimum term I have taken into account all the matters raised during the plea. I consider a longer period of supervision in the community is the best way to achieve community protection in the long term.

69You have now served  90 days in custody, I declare that this be deducted from the period of imprisonment that I have imposed.[23]

[23]s. 18 Sentencing Act Vic 1991

70Pursuant to s. 6AAA Sentencing Act 1991 but for your plea of guilty I would have imposed a term of 7 years and 4 months imprisonment, with a 4 year non-parole period.

71I make no order with respect to the Sex Offender RegistrationAct 2004 as you are already required to report for life.