Director of Public Prosecutions v McDonald
[2022] VCC 555
•28 April 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-02207
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| FRANCIS JOSEPH MCDONALD |
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JUDGE: | HER HONOUR JUDGE CHAMBERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 April 2022 | |
DATE OF SENTENCE: | 28 April 2022 | |
CASE MAY BE CITED AS: | DPP v McDonald | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 555 | |
REASONS FOR SENTENCE
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Subject:Criminal law - Sentence
Catchwords: Plea of guilty – three charges of sexual penetration of a child under 16 – on-line forum aimed at children and young teens used to contact victim – rolled-up charges reflect repeated instances of offending over a protracted period – significant age disparity between accused and victim– objectively serious offending – early plea accompanied by genuine remorse – no further offending after 15 years – good prospects of rehabilitation – general deterrence, just punishment and denunciation principal sentencing considerations – sentence on rolled up charges to reflect total criminality involved – application of serious sexual offender provisions for charge 3 – cumulation and totality
Legislation Cited: Crimes Act 1958; Sentencing Act 1991
Cases Cited:Worboyes v. The Queen [2021] VSCA 169; R. v. Verdins (2007) 16 VR 269; Stephen Barnard (a pseudonym) v. The Queen [2022] VSCA 42; DPP v. Dalgliesh (2017) 262 CLR 428; DPP v. Conos [2021] VSCA 367
Sentence: Four years and eight months’ imprisonment with a non-parole period of two years and six months’ fixed
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms H. Baxter (plea and sentence) | Office of Public Prosecutions Victoria |
| For the Accused | Ms B. Franjic (plea) Ms R. Glew (sentence) | Dribbin & Brown Criminal Lawyers |
HER HONOUR:
1
Francis McDonald, you have pleaded guilty to three charges of sexual penetration of a child under 16 contrary to s45(1) of the Crimes Act 1958. At the time of your offending, the maximum penalty for this offence was 10 years' imprisonment.[1] The events giving rise to these charges occurred between
30 June 2006 and 31 December 2008.
[1]Crimes (Amendment) Act 2000
2The victim of your offending was Susan Snell.[2] Ms Snell was born in July 1993. Your sexual offending commenced when the victim was between 12 to 13 years of age and ceased when she had turned 15. You first contacted the victim when she was 12 years old via an online game aimed at children and teens. Prior to this, you were not known by either the victim or her family.
[2]A pseudonym
3You were born in October 1964. You were between 42 and 44 years of age at the time of the offending. You had no relevant prior or subsequent criminal history.
Factual background
4The circumstances of your offending are detailed in the Further Amended Summary of Prosecution Opening upon Plea dated 19 April 2022, which is the agreed basis upon which you are to be sentenced.
5In 2003, your marriage had ended, and you were living alone in Leopold.
6The victim lived with her parents and three younger brothers in Tootgarook. Her bedroom was in a separate bungalow in the yard at the back of the house.
7In 2006, when the victim was 12 years old, she began playing an online game, 'Habbo Hotel', where characters created by the user could interact with each other in either a public or private chatroom. As stated, this online game was aimed at children and the young teen market. It was through this online game that you first began communicating with the victim. After sharing email addresses, you and the victim began sending messages to each other via another online service, Myspace. You told the victim you were in your 20s, although you were 42 years old at that time.
8You exchanged mobile phone numbers with the victim and began communicating with her via SMS and in phone calls. In one of those discussions, the victim told you she was a virgin.
9After a period of approximately nine months of online communication, the victim gave you her home address and told you that she lived in a bungalow at the back of the house. You then arranged to meet at her home address. You told the victim that you would let her know when you had arrived.
10
You attended the victim's family home for the first time on a date between
30 June 2006 and 31 December 2007. On that occasion, you jumped the fence and went into the victim's bungalow. It was dark and the victim could not see your face properly.
11You kissed the victim and lay her down on the mattress where you continued kissing. You touched the victim's breasts. As she was tense, you tried to calm her. You then inserted your finger into her vagina, causing bleeding. This was her first sexual experience. You then left in the early hours of the morning. This is the conduct that is the subject of Charge 1 – sexual penetration of a child under 16.
12After this first meeting, you purchased credit for the victim's phone and began texting her constantly.
13Not long after the first visit, you had sexual intercourse with the victim where you pulled her underwear to the side and penetrated her vagina with your penis. You are not charged with any offence in respect of this conduct. The prosecution rely on this incident as context to your offending only.
14The second charge of sexual penetration of a child under 16 relates to two separate incidents of penile-oral penetration during the same period. On the first occasion, you attended the victim's bungalow at night. You instructed her in the way in which you wanted her to perform oral sex by telling her to 'go all the way down' your penis with her mouth and directed her in how to masturbate your penis at the same time. The victim placed your penis in her mouth and performed oral sex on you whilst masturbating you in the way you directed. The victim did this for a few minutes before you ejaculated in her mouth.
15The second incident occurred when you again attended at the victim's bungalow at night on an occasion the victim told you she had her period. You told her not to worry and to 'just put a towel down'. You took off your jumper and pants. The victim removed her underwear. She then performed oral sex on you by inserting your penis in her mouth.
16These two instances of penile-oral sexual penetration are the subject of Charge 2 – a rolled up charge of sexual penetration of a child under 16.
17Charge 3 is also a rolled up charge of sexual penetration of a child under 16 and relates to five separate instances of penile-vaginal penetration that occurred between 30 June 2006 and 31 December 2008.
18The first of these incidents is a continuation of the events that occurred when the victim was performing oral sex on you in the bungalow at a time she had her period. She said to you that 'my mouth is hurting, my jaw is hurting – I can't do this anymore'. You then put the towel down on her bed and moved on top of the victim, inserting your penis into her vagina. You continued to have intercourse until you ejaculated inside her. You again left the bungalow in the early hours of the morning.
19On a separate occasion, the victim was babysitting her next-door neighbour's children. You came to the back door of the property wearing a black hoodie, triggering a sensor light. This was the first occasion the victim had seen your face in the light. She was shocked at how old you looked. You entered the property and had penile-vaginal sexual intercourse with the victim on the lounge. You pulled the victim's underwear to the side and following penetration, ejaculated inside her. The victim asked you to leave, which you did. This is the second occasion of sexual penetration that forms part of Charge 3.
20On another occasion you took the victim to Leopold in your car. You arranged for the victim to ask her father to drop her off at her friend's house in Rosebud where you were waiting for her. The victim waited until her father had left before getting into your car. She did not know where you were taking her.
21Although you told the victim you were taking her to your house, you first diverted into a bushy area, taking her into a toilet block where you penetrated the victim's vagina with your penis from behind. This is the third occasion of sexual penetration that forms part of Charge 3.
22You then drove the victim to your house in Leopold. You took her into your bedroom, removed her leggings and pulled her underwear to the side before having penile-vaginal intercourse with her on the bed, before ejaculating inside her. This is the fourth occasion of sexual penetration that forms part of Charge 3.
23During this time, the victim's parents had been ringing her repeatedly as this was the furthest the victim had been from her home. You drove the victim home later that day.
24During the period of your offending, the victim says she believed she was in a relationship with you. You had told her that when she turned 16, she could come and live with you, and that 'you'll be legal, and we can do whatever we want'.
25In December 2007, when the victim was 14 years old, the family moved to a new home in Rosebud where she had a bedroom inside the house. Your visits to the house then became less frequent.
26The last occasion of sexual penetration occurred on an unknown date in 2008, when you took the victim to a motel in Rosebud. The victim told her father she was visiting a friend but met you instead at an agreed location. You then drove her to the motel where you paid for a room. You had penile-vaginal sexual intercourse before ejaculating inside the victim. This is the fifth incident of sexual penetration that forms part of Charge 3.
27At some point after this event, the victim told you she had a boyfriend and asked you to leave her alone. You had no further sexual contact with the victim after that date.
Subsequent contact with the victim leading to investigation
28When the victim was 19 years old, she contacted you on Facebook. She asked you for money as 'compensation for ruining her life'. You reached an agreement to pay her money; first $50 and later $75 per fortnight. Between 9 February 2015 and 26 December 2019, you paid a total of $9680 into her bank account.
29On 4 June 2020, the victim sent a number of messages via Facebook to people she understood were friends of yours that she could identify as having children. One of the messages was received by was a police officer and in the message the victim alleged that a male named Frank McDonald had groomed her and had a sexual relationship with her when she was 12 years old.
30The police officer submitted a report to the Seymour office of SOCIT the following day and an investigation commenced. Police contacted the victim who confirmed your identity and then made a statement to police on 30 October 2020.
31During the investigation, the police located a prior report from 2016. During that period, you were working as a truck driver and during an unrelated work investigation, your employer had discovered a recording of a conversation between you and an unknown female during which the female can be heard saying that she was going to the police and that 'I knew it was wrong what you'd done… I was fucking 13'. The female voice was not identified by police at that time, but it has now been confirmed to be that of the victim.
32As part of the police investigation, you spoke with the victim in a pretext recorded conversation on 30 December 2020 in which you acknowledged your wrong-doing. You told the victim that 'I should never have done it to you' but that there was a time when you did love her and thought things could be different. You told the victim you were 35 years old, and that she was 14 when your physical relationship commenced. At this point you minimised the age disparity between the two of you, as you were actually 42 and she was between 12 and 13 years of age when the offending commenced. You told the victim that you regretted your conduct.
33On 13 January 2021 you were arrested and interviewed by police. You made a number of admissions in relation to your conduct. You told police you met the victim online and talked for nine months. You said she initially told you she was 19, but that you found out through a friend of the victim's that she was actually 14. You initially told police you never met the victim in person and that the only reason you paid her money was because you 'were afraid of the stigma if she went to police and made allegations against you'.
34However, when the allegations in her statement were put to you in the interview, you admitted certain things were true and said you should have gone to police in 2013 when she first contacted you. You told police that you ‘didn’t believe' that she was 14 when you first started having sex with her and that you 'can't believe that I could have done that'.
35You were remanded on 14 January 2021 and were subsequently granted bail on 16 February 2021. You indicated an intention to plead guilty to the charges at a committal mention on 14 October 2021, early in these proceedings.
Offence gravity and victim impact
36The law recognises the harm inherent in sexual offending against children. The enduring and profound nature of the harm caused by such offending is borne out in Ms Snell’s victim impact statement.
37Ms Snell says that by your conduct, you stole her innocence. She says she was too young to comprehend the significance of your crime; that she was preyed upon, groomed and her vulnerability exploited. Although she bears no responsibility for your offending, she often blames herself and suffers feelings of worthlessness. She describes emotions of fear, hate, hurt, and anger that impact on almost every facet of her life, including her relationship with her own children, family and friends. She says her feelings of anxiety and depression are crippling and have been left feeling 'alone in life' and overprotective of her children.
38Without doubt this was very serious offending. The factors that increase the objective gravity of your offending include that it occurred in the context of you having chosen an online forum clearly aimed at children and young teens to first engage with the victim. Your online anonymity facilitated your ability to deceive the victim regarding your actual age. Indeed, the age disparity was significant. She was only between 12 to 13 years of age at the time your offending commenced. You were at least 29 years older.
39Moreover, you took steps to ensure that your sexual offending went undetected by her family. You purchased mobile phone credit for her to contact you directly. You attended at her home at night where you were able to offend against her given the location of the bungalow where she slept, away from the family home. You left early in the morning. After the family moved to Rosebud and her bedroom was in the family home, you arranged to meet her in a motel.
40There is no hierarchy of seriousness for penetrative offences. Whilst digital penetration does not ordinarily involve the same risks associated with penile-vaginal penetration, that does not necessarily mean the offending is less serious. The gravity of the offending involves an assessment of the particular circumstances. Here, the act of digital penetration occurred in the victim's home where she was entitled to feel safe. You were aware the victim was a virgin, and this was her first sexual experience. The offending caused bleeding.
41The second and third charges are rolled-up charges, reflecting repeated instances of offending; two acts of oral-penile penetration and five separate acts of penile-vaginal penetration.
42I accept there was no show of force, violence or threats associated with your offending. Rather you took advantage of the victim's youth to offend against her. This was not one-off offending. You continued to offend against the victim over a protracted period of two-and-a-half years. You had ample time to reflect on your conduct over this time and stop. Your culpability increased with each subsequent act of sexual penetration. Your moral culpability for your offending is high.
43For the victim, your offending has had a devastating and multi-faceted impact on her life. You exploited her youth and innocence for your sexual gratification. You did so in her home, in a motel, when she was babysitting, in a toilet block. and in your home. You ejaculated in her mouth and in her vagina. Although your vasectomy meant she was not at risk of pregnancy, the fact you did not use a condom exposed her to the risk of disease. It was appalling conduct.
Personal circumstances
44I turn now to discuss your personal circumstances.
45As stated, you were born in 1964 and are now 57 years old.
46Yours was a difficult childhood. You were the youngest of five children. Shortly after you were born, your father left the family, and you had no contact with him until you turned 10. Your mother, now 81, entered a new relationship when you were young and for much of your early years you understood this man was your father. Both your mother and step-father were heavy drinkers. They would spend much of their time in licensed premises, and you were left in the care of your older siblings. You witnessed significant family violence, predominantly directed at your mother.
47The circumstances of your early childhood are highlighted in a character reference written by your older brother, James McDonald, dated 6 April 2022 where he states:[3]
'… Frank being the youngest seemed to be always just there quiet and only really just starting school when we left Kensington in the middle of the night, it was his 5th or 6th birthday, we were all moved in the back of a ute to Greville Street, Prahran. The older brothers and sisters seem to take it in our stride due to us having seen and experienced violence and alcoholism, traits children should not have to experience. On the morning of the move…none of us even realised that it was Frank's birthday and I believe it was from this day it was the beginning of Francis missing the necessary skills which assist us as we grow through adolescence into teenagers and then adults. It was never that Francis was not in our lives we moved in and out of his life as it suited us as this is how we became as teenagers and adults…Frank never received all the love and attention he needed and wanted…'
[3]Exhibit 4 – reference of James McDonald dated 6 April 2022
48You attended primary school in South Yarra and Richmond. You enjoyed school as it provide a degree of escape from your difficult home life. You attended Prahran High School and then Caulfield Technical School, completing Year 9 and part of Year 10 before ceasing school. You did not complete an apprenticeship or any post-secondary training before commencing your working life.
49You were a talented ice-hockey player in your late teens and in the 1980s you were selected to represent Australia on two occasions. You subsequently coached ice hockey teams throughout that decade. In his reference, your brother describes 'family anger and alcoholism' as 'destroying your confidence and taking away much of what you achieved at that time'.[4]
[4]Ibid
50Between 2000 and 2006 you served in the Royal Australian Navy as a combat systems navigator. With the exception of your time in the Navy, you have predominantly worked as a long-haul truck driver. You continued in this work until sustaining a work-related injury in 2016, for which you required surgery to your leg. You returned to work on light duties for a period of six months but in October 2018, the company ceased operating, and you have been unable to secure employment since that time.
51You have one prior matter, being a charge of indecent language dating back to 1982 for which you were fined. That matter has no relevance to the sentence I am to impose for this offending.
52You have had two significant intimate relationships in your life. You commenced your first relationship with your former wife in 1989 when you were aged 24 and have two adult daughters of that relationship. Your marriage ended in 2003/04 when it came under increasing strain while you were serving in the Navy, particularly due to having to relocate the family on many occasions. You maintained a good relationship with your daughters until these charges came to light. Since that time, you have been estranged from both of your daughters.
53Following the breakdown of that relationship you lived alone and began to drink heavily. Your brother describes this part of your life where he states you were drinking alone, and that 'no matter what you did it all turned to dust'. He says that you had 'no history of stability or support', and he considers you 'had no tools to deal with your life at that time'.[5]
[5]Ibid
54Your most recent relationship was with Krystle Powney. This relationship commenced in 2009 but also ended when you were charged with these matters. However, you remain on positive terms with Ms Powney and you retain her support, as demonstrated by the character reference she provided on your behalf. Having known you for 14 years, Ms Powney describes you as a responsible and reliable person who she has seen navigate the 'ups and downs of his life'. She describes you as a decent person and is not surprised that you have 'stepped up' and taken responsibility for your actions in relation to these charges. Ms Powney says you have indicated 'incredible remorse' for your conduct.[6]
[6]Exhibit 4 – Reference of Krystle Powney dated 2 April 2022.
Mental health
55
You were assessed for the purposes of the plea by clinical and forensic psychologist, Mr Patrick Newton, on 7 March 2022. Mr Newton's report dated
3 April 2022 was tendered on your plea.
56Having obtained your history, Mr Newton noted that you suffered a reactive depression in response to the end of your marriage in 2004 and that rather than seeking professional help, you resorted to heavy drinking. It was only following your workplace accident that you were first prescribed anti-depressants and consulted a psychologist for regular counselling in 2018. You reduced your drinking significantly from that time and have now been abstinent for more than one year. You continue to take anti-depressants.
57As to the circumstances leading to your offending, Mr Newton states that your abuse of alcohol began following your separation when you began drinking up to six standard drinks on weekdays, with considerably heavier drinking on weekends. Mr Newton says you attribute the 'breakdown in your judgment' with regard to this offending to your heaving drinking at that time. Your alcohol abuse is not relied upon in mitigation of your moral culpability for your offending but as the context leading to your online contact with the victim. It is not suggested that you were alcohol-affected on the occasions you offended against Ms Snell.
58Mr Newton reports that you feel pessimistic about the future, stating you are 'beset by loneliness, sadness and feelings of shame' that you find distressing.[7] You are also fearful of returning to the custodial environment and experience intrusive ruminations regarding your legal situation. Mr Newton expresses the opinion that you have experienced long-term social anxiety and personality dysfunction which have added to your emotional vulnerability and contribute to your diagnosed avoidant personality traits. Mr Newton also diagnosed you with a recurrent major depressive disorder which persists at a mild level of severity.
[7]Exhibit 2 - Report of Mr Newton dated 3 April 2022, at [32]
59Given the nature of the charges, Mr Newton also assessed your risk of future sexual offending. Using the Static-99R risk framework, Mr Newton assessed you as being at a low risk of reoffending. However, under the Risk for Sexual Violence Protocol (RSVP) tool, you were assessed as presenting a low-moderate risk of engaging in future sexual offending. Mr Newton opines that with continued therapeutic treatment, it is anticipated your risk of reoffending will tend towards the low-risk range as indicated by the Static-99R test result.
Matters relevant in mitigation of sentence
60Having considered the objective gravity of your offending, I turn now to discuss other matters raised by counsel on your behalf as relevant in mitigation of sentence.
Guilty plea and remorse
61First and foremost is the fact you pleaded guilty to these offences at an early stage in the proceedings. In doing so, you have accepted responsibility for your offending and through your plea, you indicated your remorse. Perhaps most importantly, your plea has saved the victim the ordeal of giving evidence in a trial. This is particularly significant in a case such as this, given the emotional distress that would undoubtedly be associated with the victim having to re-live these events. Your plea has also saved the community the cost and time of a trial and has heightened utility at this time given the delays in trials in the wake of the pandemic.[8]
[8]Worboyes v The Queen [2021] VSCA 169
62Above and beyond your plea, you have also expressed sincere remorse for your offending against Ms Snell on a number of occasions. During the pretext call with Ms Snell in December 2020, and prior to your arrest, amongst other matters you told the victim that you regretted your actions, stating that 'it affects me every day of my life' and that there is 'not a day goes by that I don't hate myself'.[9]
[9]Pretext call dated 30 December 2020, depositions page 167
63Since your arrest, you have voluntarily participated in a sex offender treatment program, having attended 15 sessions since 17 September 2021 with Mr Geoffrey Burrows, a provisional psychologist. Mr Burrows works under the supervision of Mr Matthew Barth, psychologist. In his report dated 6 April 2022, Mr Burrows states that you have spoken of being ashamed of your actions and motivated to obtain treatment to avoid reoffending. He says you expressed regret for your actions, but initially demonstrated little insight into the effect of your offending on the victim. Following treatment, however, Mr Burrows is of the opinion that you have 'successfully restructured [your] offence-supporting cognitions and demonstrated a more accurate understanding of the…destructive impact of [your] offending behaviour'. [10]
[10]Exhibit 3 – Report of Mr Geoffrey Burrows dated 6 April 2022 at [7]
64
That you have demonstrated an increased understanding of the profound impact of your offending on the victim is illustrated when, during your assessment with
Mr Newton, he asked what you would say to the victim if you had the opportunity. You stated the following:[11]
'I truly wish I could go back and change everything that happened to you, all the pain and hurt I caused you and now to your family. I can imagine relationships and friendships might be difficult for you now, that what happened is always in the back of your mind and letting it go isn't easy. That is my fault, and I'm sorry.'
[11]Exhibit 2 at [31]
65In light of your plea and admissions, coupled with your expressions of remorse, including to both Mr Newton and Mr Burrows, I am satisfied your plea is accompanied by genuine remorse for your offending conduct. Your plea of guilty, in the circumstances attracts a significant sentencing discount.
Previous good character and prospects of rehabilitation
66On your behalf, Ms Franjic submits that your previous good character should be given some weight in mitigation of sentence. I accept that submission.
67In a reference written by a friend of sixteen years, Gayle Grundy describes you as someone with the courage to 'own his mistakes in life', and says you are filled with remorse and regret for your offending. She states that following the breakdown of your marriage you struggled financially to ensure your children were able to continue with their private education. She says that your childhood difficulties meant that you prioritised their education and well-being to ensure stability in their lives.[12]
[12]Exhibit 4, reference of Gayle Grundy dated 12 April 2022
68Despite a difficult childhood, until this offending you had led a life marked by continuous employment, including six years' service in the Navy and a period of involvement in ice hockey, first as a competitor and then as a coach. You had married and raised two children. Following the separation from your wife, you had continued to provide financial support to the family. You are entitled to some mitigation in sentence in recognition of your previous good character; however, the weight I attach to this consideration is limited, having regard to the nature and gravity of your offending over a two-and-a-half year period.
69Of greater significance is the fact that since these offences were committed over 15 years ago, there has been no repeat in your offending behaviour. Indeed, you have committed no offences of any kind since that time. Moreover, since your release on bail, you have proactively sought counselling to address your offending behaviour and developed an evolving insight into the devastating impact of your crime on the victim.[13]
[13]Exhibit 3, Report of Mr Burrows at [9]
70In Mr Newton's assessment, there is no indication that you have a 'paraphilic disorder' as described in DSM-5.[14] Mr Newton assesses that you pose a 'low-moderate' risk of re-offending, but that this risk is likely to reduce further with ongoing treatment to address your persisting risk factors. Given your demonstrated motivation to engage in treatment, there is no reason to conclude you will not continue to engage in and benefit from further offence-specific treatment.
[14]Exhibit 2, Report of Mr Newton at [52.10]
71You have maintained abstinence from alcohol over the past year and are prescribed anti-depressants to address your depressive symptoms. These matters, in combination with your remorse, motivation to engage in counselling, lack of priors and significantly, any subsequent offending behaviour over the past 15 years, leads me to conclude that you have very good prospects of rehabilitation, subject to receipt of ongoing specialist sex offender treatment.
Delay
72Ms Franjic also relies on the fact that since these offences, your ongoing contact with the victim has meant that you have always known that you would face a 'reckoning' for your offending and that, over the past 15 years, that prospect has been hanging over your head. I accept that is the case and that this additional burden has, of itself, been a form of punishment.
73As a consequence of these charges, you have lost all contact with your daughters and your relationship with Ms Powney has ended. It is appropriately conceded by your counsel that you are the architect of the position you now find yourself in, but it is submitted that these circumstances have also brought home to you the consequences of your offending.
74Specific deterrence has less significance in the sentence I am to impose as a result of these matters.
Burden of imprisonment
75
Finally, Ms Franjic submits, and the prosecution accepts, that based on
Mr Newton's assessment, your recurrent major depressive disorder means that a sentence of imprisonment will weigh more heavily upon you than would be experienced by others, particularly as a first time offender. In his report,
Mr Newtons states:[15]
'While it is a truism that almost all prisoners experience some level of depression, in Mr McDonald's case the level of depression would be rendered more intense by his pre-existing depressive disorder, his personality vulnerability, the likely challenges posed by his offence type and his limited experience of the custodial environment. That is, his experience of custody is likely on account of these issues to be somewhat more onerous than is typical of an offender undergoing sentence who is not afflicted with Mr McDonald's pre-existing challenges.'
[15]Exhibit 2, Report of Mr Newton at [55]
76I accept that limb 5 of the principles in R v Verdins[16] operate to warrant some moderation of the sentence I impose. I also accept that the burden of your imprisonment will be compounded by the restrictions in place to respond to COVID-19 and, particularly, the loss of face-to-face visits from those you rely upon for support.
[16](2007) 16 VR 269
Other sentencing considerations
77I turn now to other sentencing considerations.
78I have had regard to the purposes of sentencing as set out in s 5 of the Sentencing Act 1991. In this case, the paramount sentencing considerations are general deterrence, just punishment and denunciation. In sentencing you, the sentence I impose must operate to deter others who may be minded to sexually abuse children by exploiting their inherent vulnerability.
79The legal prohibition on sexual activity with children is intended to protect them from the very harm that materialised in this case caused by premature sexual activity. Those who use the anonymity of the internet to develop a relationship with children to facilitate such offending must be deterred. In sentencing you, I unequivocally denounce your conduct. You must have known that what you were doing was terribly wrong. The objective seriousness of your offending warrants an immediate sentence of imprisonment with a non-parole period fixed.
80The maximum penalty for the offence of sexual penetration of a child under 16 is now 15 years' imprisonment. As I stated at the outset, the maximum penalty that applied at the time these offences were committed was 10 years' imprisonment. The Sentencing Act 1991 requires that I take into account, as one of many sentencing considerations, current sentencing practices. The different maximum penalty that now applies qualifies the extent to which I can do so.
81Neither counsel referred me to any authorities on the question of current sentencing practices. I have however, considered the recent decision of the Court of Appeal in Stephen Barnard (a pseudonym) v The Queen.[17] In that case, the appellant was re-sentenced by the Court of Appeal on five charges of sexual penetration of a child under 16, four of which were rolled-up charges. The applicable maximum penalty at the time of the offending was also 10 years. The Court of Appeal resentenced the appellant to a total effective sentence of four years, six months' imprisonment.
[17]Stephen Barnard (a pseudonym) v The Queen [2022] VSCA 42
82The offending in that case occurred between February 2012 and April 2013 when the complainant was between 14 and 15 years of age, and the appellant was between 22 and 23 years of age. Eight years had elapsed since the offending and the appellant's rehabilitation was advanced. In that case, the rolled up charges represented seven occasions of penile-oral penetration, seven occasions of penile-digital penetration, three occasions of penile-anal penetration, and three occasions of penile-vaginal penetration. The Court of Appeal noted that the rolled-up charges represented multiple individual sexual offences which in each case arose out of a single episode or transaction.
83Here, not all, but the majority of the multiple individual offences arose out of a discrete episode or transaction. In Barnard, the Court of Appeal stated that in determining cumulation, the Court must have regard to the extent to which each individual offence in each 'incident' or transaction adds to the total criminality of the accused's conduct.[18]
[18]ibid, at [10]
84The case of Barnard differs in a number of relevant aspects to this case. Significantly, the age disparity was not as great as here and the offending was not as prolonged. The case of Barnard provides some guidance and is also relevant insofar as the Court of Appeal took the opportunity to re-state the weight to be attached to a plea entered at this time. Whilst I have regard to this authority, I also bear in mind that past sentencing practices cannot govern or control the sentence to be imposed.[19]
[19]DPP v Dalgliesh (2017) 262 CLR 428
85Pursuant to s 6B(2)(a) of the Sentencing Act 1991, you are to be sentenced as a 'serious sexual offender' on Charge 3. Section 6D of that Act requires that the protection of the community be the principal purpose of sentencing for that offence. The prosecution does not submit that I should impose a disproportionate sentence to achieve the protection of the community. Given my assessment of your prospects of rehabilitation and the absence of any further offending since these matters, I agree with that submission.
86Section 6E of the Sentencing Act 1991 requires that the term of imprisonment imposed on Charges 3 be served cumulatively unless otherwise directed. In this case, Charge 3 is the base sentence in any event.
87On your behalf, Ms Franjic submitted that your offending formed part of an ongoing course of conduct with the one victim. It is submitted on your behalf that the total sentence should reflect the totality of your criminality and that in order to do so, the court should moderate the sentences imposed on the individual charges, in addition to making appropriate orders for concurrency and cumulation to give effect to the sentencing principle of totality.
88I accept that the sentencing principle of totality applies, but that in applying this principle I must also have regard to the legislative presumption in s6E in respect of Charge 3.
89This sentencing exercise has been complicated by two factors.
90Firstly, Charges 2 and 3 are brought as rolled-up charges. In the case of Charge 2, it comprises two quite separate occasions of penile-oral penetration. Charge 3 involves five separate occasions of penile-vaginal penetration occurring over a period of 18 months. I have taken into account that the first incident relied upon as forming the basis of Charge 3 is a continuation of the second incident that forms part of Charge 2 . In addition, two of the instances that form part of Charge 3 are a continuing episode of offending that occurred on the same date. Nonetheless, the sentence to be imposed on a rolled-up charge must take into account all of the individual offences it comprises. The authorities make it clear that whilst a single maximum penalty applies, a significantly higher sentence is justified on a rolled-up charge than would be the case for a single offence.[20]
[20]DPP v Conos [2021] VSCA 367 at [75]
91The second complicating factor is that the first instance of penile-vaginal penetration that occurs is treated as an 'uncharged act'. Accordingly, the only relevance of this incident to the sentencing task is as context and background to your offending and to preclude a defence submission that the offending was an isolated event. Given that Charge 3 represents five separate occasions of penile-vaginal penetration, this could not sensibly be submitted in any event. Accordingly, this uncharged act has limited relevance to the sentence to be imposed beyond context.
Sentence
92The submissions made on your behalf by Ms Franjic appropriately accept that your offending was extremely serious and that the only sentence available to the court is one of imprisonment. It is submitted that a non-parole period which appropriately recognises and promotes your prospects of rehabilitation should be fixed. The prosecution takes no issue with that submission.
93Balancing all the factors to which I have had regard and guided by the maximum penalty applicable to the offence at the time, I now sentence you as follows.
94On Charge 1 – sexual penetration of a child under 16 (digital-vaginal penetration), you are convicted and sentenced to three years' imprisonment.
95On Charge 2 – a rolled up charge of sexual penetration of a child under 16 (involving two instances of penile-oral penetration) you are convicted and sentenced to three years', six months' imprisonment.
96On Charge 3 – the rolled up charge of sexual penetration of a child under 16 (involving five separate instances of penile-vaginal penetration) you are convicted and sentenced to four years' imprisonment. This is the base sentence.
97It is appropriate there be some cumulation in respect of Charges 1 and 2, whilst ensuring that the sentence imposed reflects the totality of your criminal conduct against the victim. I order that four months of the sentence imposed on Charge 1 and four months of the sentence imposed on Charge 2 be served cumulatively upon the sentence imposed on Charge 3 and upon each other.
98This gives a total effective sentence of four years', eight months' imprisonment. I fix a non-parole period of two years', six months' imprisonment before you are eligible for parole.
99Pursuant to s 18 of the Sentencing Act 1991, I declare that 40 days of pre-sentence detention be reckoned as served.
100Pursuant to s 6F of the Sentencing Act 1991, I record that on Charge 3 you are sentenced as a serious sexual offender.
101Pursuant to s 6AAA of the Sentencing Act 1991, I declare that had you not entered a plea of guilty to these charges, the sentence I would otherwise have imposed would have been a sentence of six years', six months' imprisonment with a non-parole period of four years, six months.
102Mr McDonald, your offending attracts the provisions of the Sex Offenders Registration Act 2004, and you are required to comply with the reporting obligations under that Act for life. You will receive a document at the conclusion of this sentencing hearing which details your obligations under that Act which you will be required to sign.
103That concludes my sentence. Do either counsel require clarification?
104MS BAXTER: On, Your Honour, in your reasons, you did refer to Charge 3 as Charge 4.
105HER HONOUR: Sorry, it is Charge 3, that was - - -
106MS BAXTER: And correctly identified as Charge 3 in the conclusions, that is the only issue.
107HER HONOUR: Yes, thank you.
108MS GLEW: No issues, Your Honour.
109HER HONOUR: All right. I would be grateful if you could meet with Mr McDonald to clearly go through his obligations under the Sex Offenders Registration Act. A copy of that document will be forward to him for signing.
110MS GLEW: Yes, of course, Your Honour.
111HER HONOUR: Do you wish an opportunity to speak with your client now or has a conference been arranged.
112MS GLEW: No, I have asked my assistant to book a conference, is I will speak with Mr McDonald probably tomorrow. Thank you, Your Honour.
113HER HONOUR: All right. Thank you. I thank counsel for their assistance in this matter. We will adjourn the court - just one last matter, in relation to the media request for the victim impact statement?
114MS BAXTER: We have communicated with her. We have not had a response back. If Your Honour might just allow us to return to the office, we might make a phone call and then email chambers regarding that.
115HER HONOUR: Thank you. We will adjourn the court.
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