Director of Public Prosecutions v Malson (a pseudonym)
[2017] VCC 1581
•26 October 2017
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Indictment No. G11510686
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GEORGE MALSON (a pseudonym) |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | Trial;18-29 August; Verdict 29 August 2017 | |
DATE OF SENTENCE: | 26 October 2017 | |
CASE MAY BE CITED AS: | DPP v Malson (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2017] VCC | |
REASONS FOR SENTENCE
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Catchwords: indecent act (x2) attempted sexual penetration of child under 16 and sexual penetration of child under 16. Child under 12.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr P. D'Arcy | OPP |
| For the Accused | Ms J. Swiney | McNamaras Barristers & Solicitors |
HIS HONOUR:
1 George Malson[1], following a trial spanning some nine days, on 29 August of this year, a jury found you guilty of two charges of indecent act with a child under the age of 16; one charge of attempted sexual penetration of a child under 16; and one charge of sexual penetration of a child under 16.
[1] A pseudonym
2 The child was in fact under 12 years of age, as you know, and that aggravating circumstances was found to be established by the jury beyond reasonable doubt in relation to Charge 2 and 4. You were acquitted on one charge of indecent act. That was Charge 5 on the indictment. These verdicts were unanimous. You have been in custody since the date of verdict and the delay is owing to a successful adjournment application made by your counsel, Ms Swiney, to obtain materials for the conduct of the plea. You have a prior criminal history which has been admitted earlier today.
3
The charge of sexual penetration of a child under 16, when the child is, as here, under 12 years of age at the time of offending, has a maximum penalty of
25 years' imprisonment. The attempt has a 20 year maximum term and the indecent act charges are punishable by a ten year maximum term.
Facts
4 In these reasons, I am not going to name the victim or for that matter, her mother, or any of the other relatives. No one else is able to publish any information which is likely to identify this young girl. To do so is a serious criminal offence and the reasons for that are pretty obvious.
5 The victim was 11 years of age at the time of these events back in 2013/2014. She had turned 11 in September 2013. At the time of the events, the subject of the charges for which you have been found guilty, her mother was in prison. In fact the between dates periods on the indictment covered that very period. This young girl was living with a number of her younger siblings with their grandmother in regional Victoria. You had been friends with the family for quite some time, but had commenced an intimate relationship with the young girl’s mother, just before the mother was reclaimed in breach of her parole and imprisoned in December 2013. When the mother went to prison, it was then arranged that you move in to the grandmother’s home.
6 You started to spend a lot of time with the victim. She, at that stage, had very little contact with her own father and as I say, her mother was serving the sentence up in a country prison in Northern Victoria, far removed from the young girl. It took some getting to by way of travel. Indeed, that is what you did. you would drive up to make the visit, sometimes with her alone, sometimes her and some of the other children. You would break the journey in Melbourne, where you would stay the night at one of your friend’s house.
7 The summary of prosecution opening that had been filed in this matter, does accurately describe the factual basis of these charges, as after all, that trial document was founded on the video/audio recorded evidence and there was very little cross-examination as to the events, other than, of course, a challenge as to the events having taken place at all. Much of the cross-examination was dealing with aspects of background issues.
8
In any event, your counsel says in her submissions on the plea, at
paragraph 4, that the offending is accurately outlined in that prosecution opening and she is right. It does require no greater elaboration. I will still say something about it.
9
All of the four events, the subject of these charges, occurred at night in
a bedroom at that friend’s house in Endeavour Hills. On one occasion, the first of those, indeed you woke up the young girl, you offered her money so that you could touch her and you then did exactly that, you touched her on the outside of the vagina. I am satisfied beyond reasonable doubt that you did as she described, offer money. That moved on then to the attempted sexual penetration, the subject of Charge 2 on the indictment. That act is adequately described in the prosecution summary. Charge 3 and 4 occurred on the last occasion of your staying at that property in Endeavour Hills. You made her touch and hold your bare and erect penis and move her hand up and down to masturbate you. That is the subject of Charge 3. You then penetrated her vagina with your penis and you ejaculated. No condom was used.
10
There was a subsequent complaint, quite some time later, to a friend and then the friend’s mother and then to the girl's own mother.
A decision was made at one point not to proceed. There was reference made to turning up at a police station. Then a later decision was made to actually proceed with the allegation. The video/audio recorded evidence was conducted in July 2015. You were interviewed in August 2015 and denied any sexual impropriety at all. The issue before the jury was whether these acts took place. You had denied them, as I say, in the police interview. You chose not to go into evidence at trial, which was your right, obviously. The jury was clearly satisfied beyond reasonable doubt that these acts did occur and they found you guilty of them.
Mitigation
11 Your counsel, Ms Swiney, in her plea in mitigation, filed an outline of submissions, marked as Exhibit 1. She conducted earlier today, this morning in fact, a realistic and sensible plea on your behalf. As is often enough the case with a verdict after trial, there was not that much that really could be said on your behalf. She relied chiefly upon:
· A report of a psychologist, Dr Cunningham, as setting out your background in some detail and what was contained in that report as attracting one principle from the case that you heard discussed of Verdins v R;
·
She argued that when regard was had to your age, your background and your lack of any particularly relevant criminal history, past or subsequent, that you had at least some prospects of rehabilitation. She conceded that the prospects were difficult to gauge here, as was the risk of
re-offence.
·
She pointed out to me the presence of those who were supporting you in court, including, of course, family members and your partner of some years. Ms Swiney conceded both the gravity of your offending and the existence of some matters of seriousness in this particular case. She conceded that which had to be conceded, that is, the inevitability of
a substantial term of imprisonment, with obviously a substantial
non-parole period.
Prosecution
12 The prosecution, through the agency of Mr D'Arcy, who conducted the trial, also placed before me some brief submissions. They did not strenuously challenge the Verdins submission, saying really it was a matter for the court to determine, but that there had seemingly not been much issue in custody to this point. They argued that this was serious offending, committed by an offender upon a young and a vulnerable girl. Part of her vulnerability lay in her mother being absent. You were in a position of trust, in that really, you were viewed by her, the girl, as like her father.
Victim impact
13
There are two victim impact statements which I do take into account. One from the mother of the direct victim and one from the direct victim herself. I have read them in their entirety and whilst I will take into account the impact statements, other than, of course, the portions from the mother’s statement that dealt with some song lyrics and some poems that were included, I am not going to descend to the full detail of those impact statements in these, my reasons.
I still should say something about the impact and what is contained in that material, as after all, this is not all about you. I am going to be sentencing you, but I am going to be sentencing you for the crimes that have committed upon this young girl. They have had obviously a profound effect. So I will turn very briefly to some of the sentiments contained in those impact statements.
14 Even as I do so, I recognise the difficulty of reducing these things into words. It is not easy. It is easy to lose sight of the fact that your young victim was 11 years of age at the time of these events, on the threshold of entry into high school, a pivotal time in a person's life.
15 She described in her impact statement, feeling angry and confused and scared at the time of the events, of not knowing what to say or do or who to tell or how to tell. In a way she blamed herself. She did not know how to say "stop" or "no" and was frightened by what was happening. Part of the confusion lay in the fact of her having known you for a long time. She trusted you. After it happened, she describes feeling there was no one and your making her feel that no one would believe her. She was scared to tell anyone. She responded by stopping going to school and stopping socialising. She stopped doing the things that she loved and really was not the person that she had been. She had changed, was not happy anymore and was broken and torn apart.
16 She describes in her statement being so confused by the events, not understanding what had happened and why her. She felt so lost. She did not know who she was or how to live anymore. She describes in her impact statement the process of seeing counsellors and mental health workers, but in engaging in that process, that had her talking about something, often something she did not want to talk about and that was embarrassing. She was just, at the outset of those events, a young girl who loved being around people and being happy and that all changed and it changed as a result of what you did to her.
17 She concludes her statement by spelling out that of course it was hard and scary. She is glad that she spoke out. Glad that she disclosed. But she states in conclusion, that what you did is on her mind daily and will be for the rest of her life and that it is just not fair that she has to live her life like that.
18 Her mother expresses that which I had already referred to, the difficulty of placing this sort of thing into words, because it is not just words, it is impact and it is real impact. She asks rhetorically, "How do I write on paper of your
broken child and how do I explain of your child's stolen innocence?" She then attempts to. But it is not easy. Part of this is the knowledge that she was not there when these events took place. Part of it is the understanding of the difficulties of her daughter's first year in high school. These prime years, as she puts it. Then the need to put distance geographically to avoid connection by others in relation to this, because some others knew. There had been some Facebook posts referred to in the Trial, as you will recall. So there is movement from school and as the mother puts it, not only school, she leaves her home, her town where she grew up to get a fresh start, as to distance herself, maybe, from the memories, the mother says, but also from peers who had caused some pain in relation to these matters.
19 The mother describes feeling a variety of emotions, including pain, anger and guilt. She describes the guilt and the way that impacted upon her and the way that she lives her life, going as far as to say, some days she wonders if she will make it through and if life would be better for her daughter and her if she was gone. Well obviously it would not be. But she is setting out the emotional impact that has been driven by your offending. She describes these as being memories that are for life, that cannot be taken away and the impact that that has, in terms of nightmares and depression and anxiety.
20 There is also a strong sense of betrayal that percolates through the mother's statement. That is because, as she puts it, she put so much trust into the man and that man was you and you hurt her "baby girl", as she puts it in the impact statement. The focus, correctly so, in this family, between mother and daughter, is to rebuild their broken lives and that is what she is focussing on as the main priority.
21 Well, they are some of the sentiments that are picked up in the victim impact statements and they are hardly surprising. Your crimes have had a profound impact upon your victim and her mother, how could they not? So I am obliged to take the impact of crimes into account, which is exactly what I do.
Background
22 I will deal only briefly with your background, as it is set out in the report of the psychologist, Dr Cunningham, and Ms Swiney went into some very brief detail as well in her oral submissions to me. I also have no reason to doubt the background that has been placed before me and I do in fact accept it. There is nothing in your background which in any way explains this very serious offending, nor anything in the report of Dr Cunningham.
23
You were born on 8 September 1983. You are 34 years of age. You were one of four children. You were the oldest. Your parents separated. It seems to me at least, reading the materials placed before me, that you had quite a difficult childhood, with time in foster homes and some very unpleasant time up with your father up in Queensland when you were very young. You were educated to Year 10. You obviously had some difficulties at school, the reasons for which are probably explained by the testing that has been conducted recently by Dr Cunningham. But upon concluding your schooling, you then did pretty well. You completed
a plumbing apprenticeship and you have predominantly worked in that field ever since, sometimes as an employee, sometimes, it would seem, running your own business, sub-contracting to others.
24 Drugs have been an issue, not persistently, but from time to time in the course of your life. So too alcohol and so too, it would seem, some gambling.
25 You have three children with your ex-partner, Bianca. You now have a new partner Jessica. I say "new", but she has been on the scene for over three years now and she is supportive of you and knows of these matters.
26
Physically, it would seem, you are in reasonable health. You have been assessed by Dr Cunningham quite recently. He judges that you function at
a quite low level. Now that has no connection to this offending that I can discern and nor does it in any way cloud your judgement or knowledge of the wrongfulness of this sort of act. Your counsel was not suggesting that your level of functioning had any role to play at all, other than possibly increasing your custodial burden to a very modest degree.
27 Well it is a fact that you are functioning at that low level. I am no expert in these areas, Dr Cunningham is and he has performed testing and those are the results produced in his report and I accept those results. Ms Swiney argued in favour of some very modest allowance for the fifth principle from the case you heard discussed of Verdins v R and that was based on Dr Cunningham’s view that, “Your level of functioning can lead you to become overwhelmed and unable to cope at certain times.” Ms Swiney made plain that you had settled into your role as a prisoner with nothing untoward occurring to this point. She conceded that you had not yet been overwhelmed or unable to cope in the way contemplated as being a possibility by Dr Cunningham. So it is pretty speculative as to what lies ahead in that regard and the extent of increased burden, if any, is very hard to make judgments about, but I am prepared to take this increased burden into account, as your counsel urges me to. It is, I am bound to say, a very modest matter in mitigation, as she seemingly concedes.
28 You have had a number of criminal appearances in the past. They are set out in the criminal record that has been filed and admitted. You have been sent to prison before, though you have never been dealt with for any sexual offences.
29 Your counsel explained the setting of the last court appearance, which involved robbery, false imprisonment and intentionally causing injury. You were released on parole and you completed that parole period.
30 The offending for which I must pass sentence occurred between late-2013 and September 2014, more likely sometime in 2014, it seems to me. You have committed no other offences since. There is nothing outstanding and of course that is relevant to my assessment of your rehabilitative prospects, given the size of that period which has passed since. Though not the subject of specific submission to me, obviously having the matter outstanding for that period, especially the period since you were interviewed in August 2015, cannot have been easy for you and I do have regard to that fact. By the same token, of course, it cannot have been easy at all for the young girl or her mother, to have a matter waiting in the wings for as long as it has. Well at last it is to be finalised for all of you.
31 Your counsel correctly conceded that this girl was vulnerable and that your offending had to be seen in that light. It was not just a vulnerability owing to her young age, you were essentially in ‘loco parentis’, her mother was in prison. You were the meaningful adult in her life. She had little contact with her father and the point was made in the course of the cross-examination at trial that she thought of you as her own father. She had, in fact, said as much on more than one occasion in the course of the video/audio recorded evidence conducted in July 2015. You had committed these crimes in the course of the visits to her mother.
32 Now that is not a matter in aggravation. The fact is though that the crimes occurred away from the family home at one of your friend's places. It obviously heightened her vulnerability. You had offered money to allow you to touch her and you threatened her against disclosing your conduct. See the video/audio recorded evidence at Question 108. I am satisfied beyond reasonable doubt of each of those matters.
33 In the course of her evidence at trial, she said that she was protecting you when she initially said to her mother that nothing had happened.
34 I also raised with your counsel the fact of there being unprotected penetration in this case. Ms Swiney conceded that the fact of sexual penetration being unprotected, was a matter of aggravation. The aggravation lay in the risk of disease or pregnancy, though there is ultimately no suggestion placed before me that there was any disease contracted or any pregnancy caused. You were obviously, for some reason, I cannot know why, obsessed or infatuated with this young girl. You told her at one point that you loved her more than her mother. I am satisfied of that beyond reasonable doubt as well. It is hardly surprising then, with that sort of thing being said to a young girl of 11, that the offending was as confusing, as damaging and as confronting for her as it was on every level.
Rehabilitation
35
I turn to your prospects of rehabilitation. Your counsel suggested that the court really had to be guarded, given the nature of the offending and your denials of offending, but implicit in her submissions were that you certainly had some prospects of rehabilitation. She chose not to apply any particular adjective to describe those prospects. However she was submitting that you had been
a useful contributor in the workforce for most of your adult life, you were not afraid of hard work, you had a supportive partner and family, as could be seen from their presence in court. These, it was implied, were protective factors. She submitted that though you had been to court before, you have that criminal record, that there had never been any matters of a similar nature and, of course, you had stayed out of trouble for quite some time now and had served out successfully the period on parole, when you had been released, pursuant to the Adult Parole Board order.
36 It is not an easy task for me to make judgments in this area, that is, as to your future prospects, in that you are denying the offending and there is therefore no material, either expert or otherwise, touching upon your actual reasons for committing these offences. It is certainly not offending arising out of any disinhibition, brought about by alcohol or drug use. That is not the setting. Why did you offend? Why then were you sexually attracted to an 11 year old girl? Why then were you prepared to act on that attraction? Well, of course, I have no answers to any of those questions and that makes it nigh on impossible for me to forecast accurately how things might unfold in the future for you. However, it is likely that you will be required to undertake and complete a sexual offenders program in custody, prior to your ultimate release, whenever that may be. That may lead to some answers. That may lead to some decreased risk, but it is very difficult for me to speculate about that.
37 The sentence I will impose will surely also have some deterrent impact upon you in its own right and one consequence of my passing sentence in relation to these matters, is that you will be required to comply with your obligations under the Sex Offenders Registration Act 2004 for the remainder of your life and that may also militate against future risk.
38 Now it is very difficult at the best of times for a judge to make predictions as to future conduct. It is more difficult in a case such as this, where there is no explanation proffered as to the actual serious offending that has taken place. Upon having regard to all the matters that have been raised I am prepared to find, that you do have realistic prospects of rehabilitation in all the circumstances of this case.
Serious Sexual Offender Provisions
39 Your counsel conceded that you would fall to be sentenced as a serious sexual offender by the time of the third sentence imposed by this court.
40 Ms Swiney made some submissions to me as to as to the need for some level of concurrency as between the various sentences. I do accept obviously that the indictment charges upon which you were convicted group together offending from two different occasions. So on two separate occasions, two offences have occurred. It follows then that those two offences occurring on the same night are in very close proximity and part of the same episode and in that way, I think it is right, there is a legitimate claim, at least as a matter of common law principle to a substantial measure of concurrency between some of these sentences. However, not even the common law principles unaffected by the serious offender provisions would dictate total concurrency in a case such as this, nor for that matter, was Ms Swiney arguing in favour of total concurrency.
41 Each individual act here was a serious criminal offence, a serious sexual offence committed upon a young child. Each individual act would undoubtedly therefore have a role to play in the overall impact upon her, as spoken of in that impact statement. Nor am I able to just ignore the clear legislative provisions set out in the Sentencing Act that directs cumulation, unless otherwise directed in relation to the third sentence and beyond. See s.6E of the Sentencing Act.
42 I make clear that for the two sentences where you in fact will fall to be sentenced as a serious sexual offender, only a proportionate sentence will be passed by the court. Mr D'Arcy was not suggesting that there was any need or basis to consider passing a disproportionate sentence under s.6D(b) and of course I will not.
Current Sentencing Practices
43 I have looked at the Sentencing Advisory Council Snapshots No.210 of 2017 for sexual penetration of a child under 12 and No.206 of 2017 for indecent act with a child under 16. I noted in the course of discussion that the median principal sentence of imprisonment for sexual penetration is four years, with the most common sentence falling between four and five years. But they are merely statistics.
44 One thing I have to have regard to is the maximum penalty. I do have regard to current sentencing practices, as I am obliged to, but they are only one of a large range of factors that a court must have regard to. They are not a controlling factor. I have also looked at the materials available and held at the Judicial College Sentencing Manual, which very usefully include summaries of sentences imposed for the crimes of indecent act of a child under 16 and sexual penetration. But no case is ever identical, so there is always a limitation in looking at other cases.
45 There is always a real limitation in looking at statistical data, whether it is the median, or the average, or even the most common sentence imposed, disclosed from those snapshots that I have referred to. That sort of statistical material says nothing at all as to the particular background of an offender. It says nothing at all about the nature of the crime or the nature of the penetration or touching. It says nothing about the existence or otherwise of aggravating features. It does not say anything at all about the setting or the context of the offence. That sort of material, statistical material, does not disclose even the age of the child, or whether there was any particular breach of trust at play and that statistical material says nothing as to whether a matter proceeded by way of trial or a plea, or whether there was remorse or none. So there are always great limitations in looking at statistical material. Your convictions follow a trial and you have no remorse at all.
46 I have to exercise a sentencing discretion, as a judge, in relation to these four crimes. As I have said, I must take into account a large range of factors and a large range of matters, including the maximum penalty and the impact of the crime.
47 These were serious sexual offences committed upon an 11 year old girl and they are serious for reasons which I have already descended to to this point in my reasons. I really see no need to cite, as I could, a large number of cases published by in the Court of Appeal as to the inherent seriousness of this sort of crime. It is obvious. The Court of Appeal has spoken both loudly and frequently as to the seriousness of sexual crimes visited upon children.
48 In a case dealing with allegations of sexual penetration of a child and an indecent assault, the Court of Appeal said quite recently that the fact of that type of offending taking place at all underlines the importance of sentences being imposed which demonstrate to the community and to any person who might contemplate sexual offending against a child, that such offending is and should be unthinkable and not pursued. The President of the Court of Appeal in that same case observed that, if it were better understood that offending of this kind would ordinarily attract significant terms of imprisonment, that perhaps then the County Court would not be dealing as often as it has to with child sexual offences. Those words were uttered in the case of Sadrani 2015 VSCA 202.
49 You must be punished for your conduct, though my obligation is to do that justly and proportionately.
50 The court also must denounce this serious offending. That is a significant purpose of sentencing and I do denounce your conduct. You really should be very much ashamed of yourself. Of course you are not.
51 I have to pay real regard, it seems to me, to the need to deter you from offending in the future. You must be deterred, you must be dissuaded from ever contemplating committing these sorts of crimes in the years ahead.
52 Of course I have to take into account your prospects of rehabilitation. I cannot ignore them and I have commented on that already. I believe that you have really quite realistic prospects.
53
I must also pay regard to the need to protect the community from you. That is not some insignificant purpose here. In fact, that purpose is elevated as the primary purpose for sentence in relation to the third and fourth sentences imposed by the court. However, the extent of the risk of re-offence informs the extent to which that factor has significance. See the case of Beyer v R,
VSCA 15. On that score as I think I have probably conveyed, your risk of
re-offence is simply impossible for me to gauge presently, owing to the nature of your offending, the fact of your denials and the complete absence of any true explanation.
54 Clearly I must pay a very strong regard to the principle of general deterrence in this case. That is a very significant purpose of sentencing in this case and by general deterrence, I mean this court’s obligation to send a message, a loud and clear message to other people in the community, that offending such as yours will simply not be tolerated. Repeatedly our highest court in this State, the Court of Appeal, has spoken of the seriousness of sexual crimes committed upon children.
55 You have none of the sentencing benefits that so often would apply to those covered by the statistical data. For instance, a person who demonstrates remorse and who pleads guilty and at an early stage. Those benefits are very sizeable indeed in this sort of case, as they should be, but of course they have no application here at all, as you have chosen to run a trial. This was your right, to do that and you are not to be punished for exercising it, but there are a number of mitigatory matters that often apply in other cases that simply have no application at all in your case.
56 Your offending was very serious. It demands, in my judgment, a substantial term of imprisonment. I have no choice at all but to pass terms of imprisonment upon you. That is conceded by your counsel. It is inevitable that someone committing offences such as these will receive a substantial term of imprisonment. I must proceed on the footing that you will serve every day of the head sentence that I will pronounce, though I am required as a matter of law to fix a non-parole period, which is what I will do.
Sentence
57 On Charge 4, that is the charge of sexual penetration of a child under the age of 16, I convict and sentence you to six years' imprisonment on that charge.
58 I have sentenced in that matter first, as I judge it to be the most serious offence involving, as it did, actual penetration. That six year term will be the base sentence.
59
It seems to me that there are practical difficulties, in terms of the Serious Offender provisions and cumulation, in the event that I sentence on that matter as the fourth sentence imposed by the court, which is what I would do if simply sentencing in order of the charges as they exist on the indictment. I would then have to otherwise direct in relation to that matter, whilst at the same time, cumulating other parts of the sentences upon that base sentence. That is
a clumsy approach.
60 So I sentence first in relation to Charge 4, and as I say, that six year term of imprisonment is the base sentence.
61 On Charge 1, that is the indecent act, I convict and sentence you to two years' imprisonment.
62 On Charge 2, the charge of attempted sexual penetration of a child under the age of 16, you fall to be sentenced as a serious sexual offender. I convict and sentence you to three years’, nine months' imprisonment.
63 Finally on Charge 3, indecent act, I convict and sentence you to two years' imprisonment.
64 Now you are going to have great difficulty following the level of cumulation and the extent of concurrency. I will explain it to you at the end of these reasons.
Cumulation in relation to matters not covered by s.6E
65 Firstly I direct as to the level of cumulation. I direct that four months of the sentence imposed on Charge 1 is to be served cumulatively upon the six year base sentence.
Charge 2 and 3 “ Cumulation unless otherwise direct”
66 As I have said, I have sentenced you as a serious sexual offender in relation to Charge 2 and 3. Under the Serious Offender regime, unless I otherwise direct, the sentences passed upon you on those two charges would be served cumulatively upon the other sentences and upon each other. That is by virtue of s.6E of the Sentencing Act 1991.
67 I must give some weight to this statutory modification. See DPP v HPW [2011] VSCA 88. This prima facie rule as to cumulation has an evident object and one that is not to be defeated merely by a court’s exercise of a discretion to “direct otherwise.” A course such as that would compromise and undermine this clear legislative policy. This provision gives effect to a policy that serious sexual offenders are in a special category of offenders. See the case of Beyer v R [2011] VSCA 15 and R v RH McL [2000] 203 CLR 452, also more recently the case of Hopson [2016] VSCA 303.
68 I must give weight to that provision and to the nature of your offending, but it is equally clear that this prima facie cumulation provision in this area, it does not permit, or for that matter, encourage me to jettison or ignore the principles of totality of sentence. I still must and I do pay regard to the principle of totality. It is just that there is some legislative modification of that principle, owing to these provisions.
69
I have given consideration to the overall effect of the sentences imposed by me and the extent of concurrency orders shortly to be pronounced. I have engaged in a last look at the overall effect, in an endeavour to avoid the imposition of
a sentence that might be described as crushing upon you and to ensure that the outcome is in line with your overall criminality. Your overall criminality, I am afraid, was very high and so too your culpability.
70 I direct then that two years, nine months of the three year, nine month sentence imposed on Charge 2 (plus 12 months) and 19 months of the sentence imposed on Charge 3, (plus five months) are to be served concurrently upon the base sentence imposed on Charge 4 and the part cumulative sentence imposed on Charge 1.
71
It is to this extent that I otherwise direct, under the provisions of s.6E. That translates into an additional 17 months cumulation from the sentences imposed for the attempted sexual penetration, Charge 2, and the indecent act,
Charge 3. I have though followed the scheme of the legislation in directing the extent of concurrency.
Total effective sentence
72 I understand, this is far from easy for you to follow. Probably difficult for anyone to follow. What does all this result in? It results, in your case, in a total effective sentence of seven years' and nine months' imprisonment. That is my intended outcome. I fix a period of five and a half years during which you will not be eligible for release on parole.
73 Have a seat please.
Section 18
74
You have been in custody since verdict on 29 August of this year. That is
a period of 58 days. I order, pursuant to the provisions of s.18 of the Sentencing Act, that that period, 58 days, be reckoned as already served by way of
pre-sentence detention under this sentence. That is to be noted in the records of the court.
Serious offender status
75 I have sentenced you as a serious sexual offender in relation to the sentence imposed on Charge 2 and 3. That fact is to be noted in the records of the court
Sex Offenders Registration Act 2004
76 You have been sentenced by me in relation to two Class 1 and two Class 2 offences. You must comply with your reporting and other obligations under the provisions of the Sex Offenders Registration Act 2004 for the remainder of your life upon your release from prison.
77 I will shortly have handed to you a document and that document will explain your obligations under that Act. It is a lengthy document. You will need to acquaint yourself with it in due course. I am not suggesting you are going to digest it all sitting there now at the moment. I am having it provided down to you and I will be having you sign, to acknowledge that you have received those explanations as to your responsibilities under that Act.
78 What you will learn when you have the opportunity of reading it in greater detail, is that the Sex Offenders Registration Act 2004 imposes a number of conditions upon you now, including impediments to any future employment in a variety of areas. There are meaningful impediments to your future contact with children. Well you will need to report such contact. What you must do, not now, but in the fullness of time, is to familiarise yourself with these various matters, as any breach of the Act, any breach of your reporting obligations under the Act, is itself a very serious criminal offence and one punishable by a significant term of imprisonment.
79 Ms Swiney, I am sure you have seen these documents before. I am dealing with the notification of his reporting obligations. As you have probably seen, they are very lengthy documents.
80 MS SWINEY: Yes, Your Honour.
81 HIS HONOUR: It goes into all of his requirements under that Act. I am not expecting or contemplating that he is going to be sitting down there now reading this and following it or understanding it, all right?
82 MS SWINEY: No, but the acknowledgement is that he's received them, not that he's understood them.
83 HIS HONOUR: It is simply him being provided with this and he being asked to acknowledge, by his signature, that he has received the required notice under that Act. So you follow that.
84 MS SWINEY: Yes, Your Honour.
85 HIS HONOUR: What I will do is, I will have that - let me just see. I have got to sign it first. I will sign that. Having signed it, I will have that come down with my associate and perhaps you go down with her as well.
86 MS SWINEY: Yes, thank you, Your Honour.
87 HIS HONOUR: Just explain what we are doing. All right, well your client has signed that document, as I understand it, so that is all right, I will have that scanned.
88 MS SWINEY: Your Honour might have noticed that I actually took them back from him.
89 HIS HONOUR: Yes.
90 MS SWINEY: He wanted me to pass them on to his family. It is not unusual for prisoners not wanting to have that documentation in their property.
91 HIS HONOUR: Well he may not want it, but as long as he understands what it all involves. Because he - - -
92 MS SWINEY: He has to understand - yes, that's - - -
93 OFFENDER: I've got plenty of time to understand it, thank you, Your Honour.
94 MS SWINEY: Yes, Your Honour.
95 OFFENDER: Yeah.
96 HIS HONOUR: He is right, he does, but he will need to understand it. All right.
97 MS SWINEY: Yes, Your Honour.
98 HIS HONOUR: Yes, all right. Look, are there any other matters, or not?
99 COUNSEL: No, Your Honour.
100 HIS HONOUR: Now look, I have been in your position, at each end of the Bar table and - it is straightforward enough passing the sentences, you know what the sentences are, but then I have moved from cumulation to the extent of concurrency and that can be difficult to follow. Did each of you follow it and if you did, - - -
101 MR D'ARCY: I think I get it, Your Honour, yes.
102 MS SWINEY: Yes, Your Honour.
103 HIS HONOUR: Were the maths - in terms of the maths?
104 COUNSEL: Yes.
105 HIS HONOUR: That is what I am asking you and I - - -
106 MS SWINEY: Yes, Your Honour.
107 HIS HONOUR: It is a very clumsy provision, I think, but I - if I am trying to follow it correctly, that is what I meant to do, but anyway, look, the - no one has seen any problem in the actual arithmetic anyway, in terms of it?
108 MR D'ARCY: No.
109 MS SWINEY: No. Your Honour.
110 HIS HONOUR: All right. No other matters then?
111 COUNSEL: No, Your Honour.
112 HIS HONOUR: No. All right, well, thanks very much each of you for the way the trial was conducted, so you will see him downstairs, Ms Swiney?
113 MS SWINEY: Yes, all right, Mr Malson can be removed, thank you.
114 Yes, all right. Yes, I have signed that order. Yes, 10 am tomorrow then, thanks.
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