Director of Public Prosecutions v Martin (a Pseudonym)

[2020] VCC 494

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

DALE MARTIN (A PSEUDNOYM)

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:	19 November 2019, 20 November 2019, 12 March 2020
DATE OF SENTENCE:	23 April 2020
CASE MAY BE CITED AS:	DPP v MARTIN (A Pseudonym)
MEDIUM NEUTRAL CITATION:	[2020] VCC 494

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms Macdougall	Office of Public Prosecutions
For the Accused	Mr Wareham	Victoria Legal Aid

HIS HONOUR: 

1Dale Martin,[1] you have pleaded guilty to five charges of indecent act with a child under the age of 16 and one charge of sexual penetration of a child under the age of 16, that person having been under your care or supervision.  Those crimes carry maximum penalties of 10 years and 15 years respectively. 

[1] This is a pseudonym.

2You are now 77 years of age.  You pleaded guilty ultimately on the day of a trial and, accordingly, this can be only regarded as a late plea.  It is a situation, however where, despite a period of four years where each of your victims obviously had a very significantly difficult time, anticipating being cross-examined, anticipating being called liars and that has had an effect upon them.  But you must get a benefit for having pleaded guilty, in order to encourage others to take a similar course. 

3Insofar as remorse is concerned, it is my view that you have shown none and indeed, when one looks at the plea of guilty, we must also look at what you told the psychiatrist who examined you, Mr Zimmerman.  He said, at paragraph 44 of his statement, 'Mr Martin said that he decided to plead guilty to the charges against him, but did not admit to committing the offences.  He believes that the victims wanted to get the money that they will now receive as compensation.'

4That is just not simply a denial, it also involves an attack upon morality, if you like, of two totally innocent, as they were then, little girls.  In those circumstances, I think there is no remorse, however, I make it very clear, that does not aggravate the situation in any way, shape or form, this simply means that what often in these matters is the most important piece of mitigating material simply does not exist for your benefit. 

5You do have prior convictions, the last of those being some 30 years ago.  You underwent a significant prison sentence back then for culpable driving.  It is clear from the materials, I have no details of that, that it involved the overuse of alcohol and realistically, simply confirms what your counsel has put to me during the course of the submissions about you having a long, ongoing alcohol problem.  There is nothing in those prior convictions which is suggestive of this sort of offending and accordingly, they are of little value, other than there is nothing, as I say, since 1989.  I noted that this offending took place within, on my calculation, two or three years of your release from prison back at that time, but I am not going to speculate anything further.

6There has now been a significant delay from the time that the charges were laid, until the time of sentence being passed.  That was largely due to your having, for a long period of time, persisted with a not guilty plea, however, I accept what your counsel submits that, upon your pleading guilty, there became the need and I could not have sentenced without it, for further medical material. 

7There was a suggestion, a strong suggestion that you indeed have lung cancer and it may well be terminal.  Endeavours have been made, unsuccessfully in many respects, to find out what the diagnosis is in that regard and all I can really do in fairness to you, is sentence on the basis there is a real probability, I would have thought, that you do have some form of malignant tumour on your lung and that will make gaol a more difficult time for you.  There is nothing to suggest that any treatment needed, if you ever agree to receiving it and so far you have refused, could not be undergone in gaol.  That leaves you with the fear, an understandable fear of dying in gaol.  That may well be the case in any event, but I do take that into account.

8It is also a situation where you do have a significant number of other medical issues and they are outlined in the report again of Dr Zimmerman.  There is other material supporting those diagnoses and they essentially come down to thrombosis.  You have had neurological difficulties.  You would appear to have had heart problems.  You have breathing difficulties.  There is a whole raft of problems, probably largely related to alcohol, but that is not the point.  I take all those matters into account and I have no doubt that, in that situation, certainly on an emotional level or an anxiety level, you will undergo a sentence harder than what a prisoner who did not have those conditions. 

9Again, there is nothing in the material to suggest that any of those conditions cannot be adequately treated in a gaol.  You will undoubtedly do the time at Ararat and an adverse comment to our community, as we know it, is that gaol, because of the demographics involved in its prison population, to my knowledge, is well-equipped to deal with such matters.  However, I do take into account your ill health, insofar as that is all concerned and the difficulties that will impose upon you. 

10I also take into account the, as I said, the aspects of delay that you have spent some time since the plea worrying about what the ultimate sentence is going to be and what your future holds. 

11Insofar as the current situation regarding pandemics is concerned, I have had the benefit of reading a case very recently brought down in the New South Wales Court of Appeal, which was very helpfully provided to me by your counsel. 

12In that decision of RC v The Queen, Her Honour Wilson J commented that:

'It may be readily accepted the experience of serving a custodial sentence will be more onerous for him than it is as a general experience.'

13This was of a 76 year old man.

'It is reasonable to conclude that the respondent, a man of advanced age, who suffers from a long-term bronchial condition will experience a level of stress, anxiety and even fear at the potentially fatal consequences to him, were he to be infected with the COVID-19 virus in prison.  That would not be the case for a younger, fitter prisoner.'

14I will follow those reasons.  I agree with them.  I simply point out that quite a bit of this is involving, in my view, speculation as to what the future may hold.  At the best of my knowledge as it stands as at this day, not one person has shown to be COVID-19 positive in a gaol environment.  You will be much safer there than you would be in a nursing home or indeed, the oncology unit of a hospital.  But again, they are matters which the future may well have cause to be somewhat different as it appears now.  Were this to get into Ararat, I have no doubt that they would put in place matters to deal with it, but the prospect of it being uncontrollable in that environment is, I accept, a very real fear for people in your situation and I do take that into account.

15It is clear from the decisions that I have read previously and I have also been handed up here, that age, the prospect of potentially dying in gaol, the risk to becoming very ill in gaol, are all matters that go, in my view, to my decision. However, the Court of Appeal in this State has clearly pointed out, they are matters to be taken into account, but they are not determinative. 

16I then go into a summary of the offending and the summary will be anonymised at a later date, so I will be using the names of the complainants and they can rest assured that they will be removed, such that they cannot be identified, at a subsequent time. 

17There are two victims in this matter, Hayley Schaffer,[2] who was your niece and your daughter, Yasmin Berryman.[3]  They were between nine and 10 and nine years old respectively when the situation, or the offending against them occurred.  At that time, and again I am abridging this because the Crown summary will be on file and I direct that it remain on file, they would come and stay with you in a caravan at the Nicholson River caravan park. 

[2] This is a pseudonym.

[3] This is a pseudonym.

18Ms Schaffer recalls you sexually abusing her over a one or two year period between 1992 and 1994 when she would go to your caravan with her cousin, Ms Berryman, during the school holidays.  The first time she went nothing sexual took place.  The second time she stayed with you, however, sexual offending did take place.  That was around Ms Berryman's birthday, which was between August 1992 and October 93, when Ms Schaffer was aged between nine and 10.  For these purposes, I am accepting, as the indictment seems to make clear, that she was over 10 when this offence, or this offending occurred and I have no difficulty with that. 

19On that night when Ms Berryman was given presents, the three of you, that is, you, Ms Berryman and Ms Schaffer, were in the one bed together in the caravan.  At one point you placed your hand on Ms Schaffer's right leg that should read and started sliding up to her crutch.  As you did this, Ms Berryman laughed.  Ms Schaffer thought this meant that you were making a joke.  She said something along the lines of, 'Dale, don't be dirty', in response to which you shot her “a serious look”, whatever that means, and continued moving your hand to touch her vagina under her nightie.  That is Charge 1.

20Charge 2 of sexual penetration of a child under 16.  On the same or another night - and that is hard - well there is no way known I can differentiate between the two.  At around the same time, she woke up to pain in her vagina and you moving your finger in and out of her vagina.  She froze and stayed quiet, hoping it would stop.  The same night you told her that she was not allowed to tell anyone that that had happened.  That gives rise to the charge of sexual penetration.  She was clearly under your supervision. 

21You are certainly not charged with it, but - and that set of circumstances, if accepted by a jury, you would have been undoubtedly convicted of rape, I would have thought, but that is not the situation, you are not to be sentenced for that, it just simply indicates that this was not in any way, shape or form, a circumstance with a child that could have even been perceived as having, in some way, shape or form, consented to it. 

22She recalls that that type of conduct occurred many times after this first night.  I make it clear that these are not representative charges, it is not a course of conduct charge and they are not rolled-up charges.  You are to be sentenced for one act.  What I am about to describe is simply context which shows that the offending did not take place in an isolated situation and it is part of a chain of events which ultimately caused extreme psychological damage to your victims.

23As I say, she recalls that many times after the first time, on every occasion she stayed at your caravan, right up until her last trip there.  She recalls you removing her clothes, admiring her body, touching her breasts.  She also recalls waking up numerous times to pain in her vagina, freezing and remaining quiet, hoping you would think she was still sleeping and stop.  You would tell her you knew she was awake and would continue.  You would also say things like, 'You are not wet enough' and you would use your tongue on her vagina. 

24She also recalls that you would make her touch, hold and masturbate your penis, that you would hold her hand on your penis, moving it up and down and you would also masturbate your penis with your hand in front of her and would hold her hand and make her touch herself on and in her vagina.  Ms Berryman also recalls time when she and Ms Schaffer were staying there and you would call Ms Schaffer to go and sleep in your bed with you at night time.  That is the charge of sexual penetration.  That is, in my view, a very serious example of it in these circumstances and I will come to that again in a moment.

25Charge 3, indecent act with a child under the age of 16.  That is a circumstance of you making her touch his penis.  And again, that is a single count and simply fits in with all this. 

26Charge 4 of indecent act, was a circumstance where, at one stage saying 'Goodbye', she was told to come out and say - Ms Schaffer was told to come out and say, 'Goodbye' to you.  She did.  You hugged her and without anyone noticing, squeezed her bottom, which I do not take into account, based on
Mr Wareham's submissions, but you kissed her on the lips, trying to stick your tongue in her mouth.  She kept her teeth clamped shut.  She recalls not wanting to go back to your caravan, but was scared what would happen if she did not.  She tried to make sure that Ms Berryman was never alone with you.

27So far as Ms Berryman is concerned, Charge 5, indecent act with a child under the age of 16, and Charge 6, indecent act with a child under the age of 16, occurred on the same occasion.  For those reasons I will be making the sentence on each concurrent with each other. 

28Ms Berryman was staying on her own with you and she was your, as I have indicated already, natural daughter.  She said it was the year Carlton and Essendon played in the grand final and the game had been on during that visit.  One night during the stay, she went to go to bed and you appeared intoxicated.  You told her to get into your bed.  You were wearing grey underwear with a black band and a white top and she was wearing her nightie with underwear. 

29She lay on the bed with you and you asked her if she knew where babies came from.  She said she was scared when you said this, but she did not know, did not want to talk about it with you.  She laid there shaking her head and saying, 'No.'  You told her that you would talk all about it.  You said then, 'When two people like or love each other, they have sex with each other.'  At that stage, she felt really scared.  You pulled down your underwear, grabbed her right hand and placed it on your erect penis and made her rub your penis.  You told her to keep going this and after a few minutes, began to fondle her over her underwear, though for these purposes, I am treating that as part of Charge 6, not part of Charge 5. That gives rise to the indecent assault, which for these purposes, is causing her to rub your penis.

30You then slid her underwear to one side and started to touch her vagina directly, rubbing it on the outside.  As you did this, you explained how the penis went into the vagina and it felt good.  That was how babies were made.  She said that she did not want to do this anymore and turned over, crying and pretending to be asleep.  She could feel you continuing to rub yourself while she laid there.  She remained in the bed the rest of the night and in the morning, you told her not to tell anyone about what had happened, that she would not be believed and that she would get in trouble. 

31As I just said to your counsel during the course of submissions, that is about a half inch away from a charge of incest and post-Dalgleish, I think anyone in the legal profession is pretty aware of what the sort of sentences are for incest itself, they just simply say, reflect how seriously I regard this particular piece of offending.                She, in terms of uncharged acts or context, says she recalls there were other times when she and Ms Schaffer were staying with you, recalls at least one occasion prior to this incident when you were on top of her, her mouth was open and your penis was near her mouth.  Again, that is context only and there is no penetration charges here, or the sentence would be significantly higher than it is going to be. 

32In any event, complaints were ultimately made and I will not go through all that.  You were interviewed.  You denied the matters and as I understand it, when you - not as I understand it, when you spoke to the psychiatrist in relation to these matters, you denied the offending and you said that the two victims were simply apparently making it all up for commercial purposes. 

33I will not go through the concept of remorse again.  As at today, you have now spent 156 days in custody. 

34You indicated an intention to plead guilty back in August of last year. 

35The plea commenced in November of last year in front of me.

36You were remanded in custody.  At that point in time, as I have indicated, there needed to be more medical material brought into existence.  That was partially successful and we ended up with a circumstance of, as I have indicated already and I do not need go there again, a probability that you do have a malignancy within your lung, but no diagnostic estimate of life expectancy or anything like that is before me, but I do take it into account.

37Victim impact statements have been tendered and certainly one of them was read aloud in court.  Those victim impact statements eloquently describe the damage that offending such as this causes. 

38Ms Schaffer, in her victim impact statement says and she will understand that I am just reading small sections of this.  The entire document remains on court file and has been read by me on a number of occasions and it is all taken into account, other than bits which are clearly inadmissible.  She says:

'As a result, I suffered from PTSD, depression, anxiety, insomnia and struggle in every aspect of my life.  I no longer remember the little girl I once was before these assaults.  All I have known is a scared, withdrawn and untrusting and a gut-wrenching sadness.  This has caused effects on my friendships, relationships, workplace and even in my children's lives.  My relationships with partners have been significantly affected.  I'm very untrusting, emotional and I find it extremely difficult to be intimate and don't show a lot of affection.  I do not enjoy any form of foreplay and more times then I find it difficult to engage in sex and I always have flashbacks when I engage in intimacy.  These issues have often led to failure of relationships and every relationship I have been in has resulted in infidelity from my spouse.'

39She points out how she is overprotective with the children that she now has, that her daughters are around about the same age and that causes her concern.  She says:

'For five years now since making my statement, my life has been on hold, waiting and bringing my trauma back up, just to have - keep waiting, then repeating the cycle.  Talking about the sexual abuse I suffered makes me feel dirty, disgusted, anxious, stressed and extremely upset and then to go through this process to be repeatedly questioned, you have to talk about what happened to me, relive it in mind to be worried about people thinking I'm lying.  To have to sit in a courtroom and know he's saying he's not guilty, know he's been lying over these past five years, not to mention all the years that he's walked a free man while I suffered and wondered if me keeping quite mean others who came to the same fate as me from him is adding to the trauma and it's extremely difficult to cope with.'

40I point out that I am taking into account the utilitarian benefit of his plea of guilty. 

41She talks about struggling every day, about being impulsive and trying to distract herself. 

'The crimes committed against me do not just affect me, they have ripple effect that gets wider and wider and connects to everyone around me through my life.  I family have had to go through a lot to try to understand and help support me.  My children almost lost a mother, my husband almost a wife, my parents almost lost a daughter and so on because of how hard it has been for me to attempt to manage it with the issues and illnesses I am now suffering as a result of Dale's actions.  No matter what the outcome is, I'll always suffer from these illnesses as a result of this man's conscious utmost breach of duty of care.  I will always be paying the price for his horrific decisions and actions against me until the day I die.  There is nothing I can do and no magic pill I can take to fix me.  I'll never just get better.  My resulting illnesses will not go away at a time.' 

42I think it is fair to say she is not making that up for money.

43Ms Berryman also provided a very eloquent and moving victim impact statement.  You, of course, were her - you still are, her natural father.  She describes having seen you assault her mother.  I do not take that into account here, though I note that you did tell the psychiatrist or the psychologist that you were a violent drunk, but that is not what you are charged with. 

'My holidays were sitting in your dingy old caravan while you were over at the pub drinking or at home drunk.  My chest still gets tight when those times come back to haunt me.  I feel uncomfortable, I was.  I feel the desire of wanting to get as far away from you as I could.  What was stronger was the desire to be close to you, to have that one moment when I felt in my imagination that I could have a happy and safe childhood, enjoying memories of those school holidays, spending time with you.  I clung to that hope that one day that you would want that too, so I still called you Daddy.  I had no one else to look up to.  You were one half of my whole world.  Your only job was to protect me, to teach me, to make me feel safe, yet you failed to do so.  You were never my daddy, you were never a father, you were never anyone to look up to, you merely provided the genetic material that created me.'

44She talks about how that innocent child was destroyed.  She talks also about how the court proceedings have been drawn out now for four years and all that time you defending what you did, standing fast to manipulation and in her mind, trying to prolong the proceedings.

45She says:

'Every single day of my life I live with the torment, the horror of what you have done to me.  Sometimes the memories come like flash photography images, they pop up suddenly from deep inside out of nowhere, clear and as real as if I'm experiencing that moment all over again.  The anxiety it has caused just hits me like a kick in the chest, it almost makes me buckle every single time I feel this.  I live with this very moment of every day, all because of that one day, that one night.  That night changed everything for me.  It destroyed everything that I had thought was good and safe.'

46She then goes to talk about having been diagnosed with PTSD, borderline personality disorder and a number of other psychological conditions. 

'My mental health has been impacted very severely due to this.  There are many days where I cannot get out of bed.  I just lie there and replay what you did over and over and over again.  There's no escape from it, there's no turning it off.'

'I have attempted suicide on multiple occasions.  I bear permanent scares on my arms from when I've been overwhelmed, there's so much emotional pain I couldn't breathe and had to hurt myself to feel alive, to feel something else, to allow myself to breathe.  Cutting myself caused less pain than how I was feeling because of what you did.  I blame myself for what happened to Hayley each and every day.  Whilst we know logically that I know that it wasn't my fault, I'll never stop blaming myself because of the damage that's been done.  It's emotionally draining blaming myself for something I should not do, but I can't help it.  I feel anger that I could not have stepped in and stopped it, could not have prevented it.  I could not have just taken it on myself and had her left without the underlying trauma.  It's such a hatred feeling of myself that I could not have stopped it, even as  young girl, it's always tormented me and it will never stop.  I've also not been able to be intimate with my partner for a long time because each time I go back to that place and again I don't need to go through it and recall all the details of that.'

47She also describes the dreadful consequences this has had on intimacy, on relationships and upon family.  She again points out the damage that your persisting with a not guilty plea for over so long that has caused her.  Both those victim impact statements are copybook post-traumatic stress disorder.  They are copybook consequences of what this sort of offending does and I think they are consequences that people who have never had to deal with this, or never had family members have to deal with this, or never actually heard all this in open court has had no real understanding of. It is dreadful offending, in my view, (1) against a niece, (2) against your own natural daughter. 

48The offending did not occur in isolation.  It is a situation where certainly insofar as the penetration is concerned, there was pain.  It could not be described as spontaneous, they are persisted with.  Whilst not aggravating, they were remorseless.  They were both very young and there is clearly a sexual connotation to it all, not some sort of silly old man's experimentation, as is sometimes the event. 

49The offending has to be regarded as very serious.  It calls for the application of general deterrence.  In your circumstances, despite the lack of insight, I accept that because of age and the length of the sentence you will have to undergo, that community protection is not a significant part of the sentencing process. 

50From Charge 3 on you will be sentenced as a serious sex offender.  I am aware that it will be cumulative unless otherwise ordered and I will be otherwise ordering.  The Crown do not seek a disproportionate sentence.  I am aware that community protection is the principle sentencing purpose, but as I have indicated, I think the risk of you offending again in this way is very slight, if not minimal.  However, it must call for the application of principles involving denunciation and principles involving punishment.

51In The Queen v Toomey, a matter handled by Mr Vincent J, he said - and that was in respect of a Christian Brother:

'The situation in this respect can be seen similar to many encountered in the courts where there's been the sexual abuse of young persons.  Often such victims experiencing unjustified feelings of embarrassment, shame and guilt that have been induced by the behaviour of the perpetrator will

continue to remain so for many years.  Accordingly and very frequently, as in this case, the commission of the offences will not be exposed until long afterwards.  Considered in this light, it is in my opinion apparent that the principle of general deterrence must assume very considerable significance in a sentencing consideration.  Further, it's incumbent upon the courts, however long ago the offences were committed, to express the denunciation of the community for such behaviour through the sentences imposed on perpetrators.  They must be seen to vindicate the values of the society that they represent, fundamental to which is the protection of its children.' 

52Requoting what Mark J said in The Queen v MJ:

'It is society's task to protect its children from sexual abuse by adults, particularly those entrusted with their care is degenerate.'

53He went on to say:

'The offence of incest, that is very close to it.  It's particularly erosive of human relations and cast doubt on the assumption that parents are natural trustees of the welfare of their children.  It ought to be unnecessary to recount the morbid features of incest'

54And here I am pointing out, you are not being sentenced for incest.

'and those prominent, which include the exploitation by the stronger will of the adult of the weaker will of the child, the physical and psychological subordination of the child to the perverted indulgences of the adult.  The gross breach of trust placed on the offender by the victim and the community and the irreparable fundamental damage to the victim.'

55All those matters, in my view, are pertinent in this situation.  Because of the offending, you will be placed on the Sex Offenders Register and I advise you that the reporting for this will be for life.  I have indicated I take into account the - so far as the sentence is concerned, the fear that you have that you may well have gone to gaol for - as I say, it is again, not determinative.  Those documents will be provided to you in due course and their desire to stand at some subsequent stage, your counsel as instructor will have the conference and explain that to you.

56I then look to matters personal to you.  You are now 77.  In laudably succinct submissions, your counsel has pointed out that at the time of the offending, you were between 49 and 50.  You had a difficult upbringing, you were brought up by an aunt who then ultimately - you called aunt, who ultimately turned out to be your mother.  You have brothers and sisters.  You left school early in Form 1 and began working for SE Dickens or Coles as it has now become known.

57At one stage you assert you were violently raped by your boss and I accept that is in all probability the situation.  You then worked for the local council, then worked at the Hazelwood Mine for eight years and the SCC for a further seven years, up until the time that you were involved in a serious workplace accident, when a brick fell from a height shattering your shoulder, you had a very good work record.  You have been unable to work since then, but you did receive some compensation.  I am assuming that compensation probably went the way of alcohol or gambling from what I have read in Mr Zimmerman's report.  Anyway you have had a continuing problem for many years.  You have started off as a social drinker and as Dr Zimmerman points out, you have subsequently became a very heavy drinker and have been a heavy drinker for a long time.  You also are a fairly heavy smoker as I understand it.  Your prior convictions for culpable driving would come to support what Dr Zimmerman had to say.

58You had had a number of relationships and I will direct that the doctor's report remain on file because of the time restraints on me in terms of the sentencing remarks.  He points out that you have three children, but the children and grandchildren refuse to have contact with you.  Since these crimes have become known, you will be in gaol in a situation of no contact visits, which you probably would not have had in any event.

59If the gaol goes into lockdown, which is very much up in the air, I accept that that would be detrimental to you and it will be a significant period of time that you will have to spend in lockdown.  I am not entitled to speculate so far as those matters, and I do not, but there may well be in the long term, executive action taken which will relieve some of those difficulties in terms of the actual time, or the actual length of sentences, but that is not a matter for me.  For these purposes, I take into account there is a real possibility of you spending an extensive period of time, certainly over the next six months, in a lockdown situation.

60You told Mr Zimmerman between the ages of eight and 16, you were boxing and fighting in tournaments all over the country.  You left school after about seven months of Form 1.  You stopped working when you were assaulted and you describe having, essentially since that time, begun drinking and been able to keep working despite all that alcohol.  You told him that you had a number of relationships.  You had a young child who died of a brain tumour and I accept that that has caused you over the years depression as you indeed wept when you were telling Mr Zimmerman about this. I accept that has been an ongoing cause of anxiety to you.  It will be hard to see how it relates to this offending, but that is another matter, it is a matter personal to you.

61You described to Mr Zimmerman that you were always at the pub.  You described yourself as a 'vicious drunk who got into a lot of fights'.  You said you would hit anyone and you obviously had a very difficult period of time and have been a drunk and violent man.  Unfortunately, in those circumstances, you also sexually indulged yourself with a niece and also with your natural daughter.

62You described having felt ill, that you thought you had about three months to live and I have been through the circumstances of your medical health.  I accept what Dr Zimmerman says.  I have read all the medical material and I have no doubt that you are indeed a sick man.  You believe that you have lung cancer and you are essentially refusing treatment.  There is not much I can do about that.  Again as I have already indicated, I have no material before me as to life expectancy that I can take into account, but I do accept that that is your fear.  I have to sentence upon that basis.  As I have said, I will leave the - so I have directed that report remain on file. 

63In the end, the prospects of your rehabilitation are very problematic.  There is no insight whatsoever, but again, I think the risk of you reoffending in this way is unlikely.  In terms of those matters, there is not much more I can say.  Having examined the matter, taking into account all those features that I have mentioned of it being natural children, totally under your care, totally under your power and your self-gratification, your late plea of guilty, and whilst is not aggravating, the total absence of remorse in terms of any satisfaction for them. 

64As they point out in their victim impact statements, and is so often the case with these matters, a lot of what the victims want is just the acknowledgement of what was done to them, that it was not their fault.  In this set of circumstances, you still have not even given them that, despite your plea of guilty and whilst that again does not aggravate the situation, it is certainly a circumstance which I have to take into account, or not take into account I suppose in the sense that it simply reinforces the fact that on the face of it do not seem to care what has happened to them.

65For reasons of totality, I will be directing there be a significant level of concurrency.  At the end of the day, there are two victims, it is serious offending and the plea was late.  General deterrence as Justice Vincent said, has to play a very significant part in all this.  I point out that had these matters been dealt with in isolation, there are a couple of them that I may well have not imposed a custodial sentence upon.  That is not the case.  I am being as careful as I can, with minimal accumulation to not have you in the situation of double punishment.

66It seems to me that certainly in regard to Charge 2, the Crown probably could have succeeded with a course of conduct charge if they wanted to, so you may well have had a benefit in all of that, but taking those matters into account, best as I can, all these very difficult circumstances, on Charge 1, 12 months.  On Charge 2, the penetration, four years.  On Charge 3, 12 months.  On Charge 4, six months, that is to be totally concurrent.  On Charge 5, that is the indecent act upon your own daughter, two years.  Charge 6, two years.  Those two incidents occurred on the same night and rather go through - in very close proximity to each other and rather go through some form of artificiality of moderating one and then accumulating the other, I am going to make the sentence on Charge 6 totally concurrent with the sentence on Charge 5, which means in respect of your daughter, it is a sentence of two years and in respect of the niece whom you penetrated, it is a sentence of four and a half.  That gives a total effective sentence of six and a half years.

67In these circumstances, I direct that you serve a minimum term of four years and nine months before becoming eligible for parole.  As I have indicated to your counsel, it is a somewhat generous discount, but pursuant to s.6AAA, I say that but for your plea of guilty, you would have been sentenced to be imprisoned for a period of nine years, with a minimum term of six and a half years.  I direct that a 156 days be reckoned as having been served under this sentence.  Are there any other orders I need to make Mr Wareham or
Miss MacDougall?  The 464 I have done. 

68MR WAREHAM:  The 464 you have done.  Sex offender registration you've already done.

69HIS HONOUR:  There is no ‑ ‑ ‑

70MR WAREHAM:  The 6AAA you have already done.  I think that ‑ ‑ ‑

71HIS HONOUR:  There is no disposal orders?

72MR WAREHAM:  No, Your Honour, I don't believe so.

73MISS MacDOUGALL:  No, there is no disposal order.  Your Honour, what was the non-parole period please for the total effective sentence?

74HIS HONOUR:  Four years, nine months.

75MISS MacDOUGALL:  Thank you, Your Honour, and was Your Honour sentencing as a serious sexual offender from Charge 3 onwards?

76HIS HONOUR:  Yes as I said.

77MISS MacDOUGALL:  Thank you.

78HIS HONOUR:  And again, I make that very clear.  This is a situation - I am well aware of that legislation, but I have taken the view that because of his age, because of the length of the sentence I have to impose, I am not going to involve total cumulation, that would be grossly unfair to him, it might not be with his victims, but it would be grossly unfair to him and totality demands otherwise.  So in all probability it would be the same sentence, absent him being a serious sex offender.

79MR WAREHAM:  Your Honour can make a - could Your Honour make a declaration for - I see it's cut out, but a declaration for the pre-sentence detention has to be made formally.

80HIS HONOUR:  I already made it.  Did I not?  I said 156 days, yes.  All right?

81MR WAREHAM:  Thank you, Your Honour.

82HIS HONOUR:  Yes, thank you.  Yes, thank you Miss MacDougall, thanks
Mr Wareham.

83MISS MacDOUGALL:  If it please the court.

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