Director of Public Prosecutions v McLain (a pseudonym)
[2024] VCC 657
•15 May 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NEIL MCLAIN (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE TIWANA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 September 2023, 14 November 2023 & 5 April 2024 | |
DATE OF SENTENCE: | 15 May 2024 | |
CASE MAY BE CITED AS: | DPP v McLain (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 657 | |
REASONS FOR SENTENCE
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Subject:Criminal Law – Sentence
Catchwords: Grooming for sexual conduct with a child under the age of 16 – Sexual penetration of a stepchild – Indecent act with a child under 16 – Sexual assault of a child under 16 – Sexual assault of a child aged 16 or 17 under care, supervision or authority – Sexual assault – Rolled up charges – Standard sentencing – Serious sexual offender provisions – Offending against three stepdaughters over a protracted period between 2016 and 2023 – Victims aged between 12 and 18 – Profound and ongoing impact on the victims – Serious psychological manipulation – Gross breach of trust – Extremely high moral culpability – Early pleas of guilty – Remorse – No prior convictions.
Legislation Cited: Crimes Act 1958; Sentencing Act 1991; Sex Offenders Registration Act 2004.
Cases Cited:DPP v Dalgliesh [2016] VSCA 148; R v Sposito [1993] Unreported VSCA (8 June 1993); R v Jones [2004] VSCA 68; Gordon v R [2013] VSCA 343; R v Van Boxtel (2005) 11 VR 258.
Sentence: Total effective sentence of 17 years and 3 months’ imprisonment with a non-parole period of 13 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Cordy (Plea) Ms D. Caruso (Sentence) | Office of Public Prosecutions |
| For the Accused | Mr A. Pyne | Slater Law |
HIS HONOUR:
Introduction
1Between April 2016 and 16 February 2023, you, Neil McLain,[1] committed sexual offending against your three stepdaughters, who are biological sisters.
[1] A pseudonym.
2This offending has given rise to 12 charges on Indictment number P10366518, to which you have pleaded guilty.
3Charges 1 and 9 are offences of grooming for sexual conduct with a child under the age of 16, contrary to s 49B[2] and s 49M(1)[3] of the Crimes Act 1958. This offence carries a maximum penalty of 10 years’ imprisonment.
[2]In respect of Charge 1.
[3]In respect of Charge 9.
4Charge 2 is an offence of indecent act with a child under 16, contrary to s 47(1) of the Crimes Act. This offence carries a maximum penalty of 10 years’ imprisonment.
5Charges 3 and 10 are offences of sexual assault of a child under the age of 16, contrary to s 49D(1) of the Crimes Act. This offence also carries a maximum penalty of 10 years’ imprisonment.
6Charges 4, 5, 6, 7 and 8 are offences of sexual penetration of a step-child, contrary to s 50D(1) of the Crimes Act. This offence carries a maximum penalty of 25 years’ imprisonment.
7Charge 11 is an offence of sexual assault of a child aged 16 or 17 under care, supervision or authority, contrary to s 49E(1) of the Crimes Act. This offence carries a maximum penalty of 5 years’ imprisonment.[4]
[4]The maximum penalty of 10 years stated in the prosecution opening (Exhibit A1) is incorrect.
8Charge 12 is an offence of sexual assault, contrary to s 40(1) of the Crimes Act. This offence carries a maximum penalty of 10 years’ imprisonment.
9The offence of sexual penetration of a stepchild is a category 1 offence.[5] Charges 4, 5, 6 and 8 are subject to the standard sentencing regime. The standard sentence is 10 years’ imprisonment. It is agreed between the parties that charge 7 encompasses offending after the victim turned 18.[6] Accordingly, this charge does not attract the standard sentencing regime.
[5]Sentencing Act 1991 s 3(1).
[6]The penultimate incident subject to this charge occurred on the day the victim turned 18 and there was one final incident that occurred when she was 18 years old.
10Charges 3 and 10, sexual assault of a child under 16, are also subject to the standard sentencing regime. The standard sentence is 4 years’ imprisonment.
11Charges 3, 4, 6, 7 and 8 are rolled up charges.[7]
[7]
Circumstances of the offending
12The circumstances of your offending are set out in an agreed amended summary of prosecution opening dated 20 December 2023.[8]
[8]Exhibit A1 (In court the prosecution read from an opening dated 5 September 2023, Exhibit A. Slight amendments were made to Exhibit A and Exhibit A1 was formally tendered).
13I was also greatly assisted by Annexure A prepared by your counsel, Mr Pyne. This three page document sets out the offending relating to each charge for which you fall to be sentenced. On behalf of the prosecution, Mr Cordy accepts that this document accurately reflects the matters charged, including each instance of the rolled up charges.
14At the time of the offending, you were between 42 and 49 years of age.
15You were in a relationship with your victims’ mother, Carolynn McLain,[9] and married her in 2011. Carolynn worked long hours, leaving early in the morning and not returning until late at night. Her employment also necessitated frequent travel away from home.[10]
[9] A pseudonym.
[10]See Dr Sakdalan’s psychological report dated 3 November 2023, [22] (exhibit 5).
16Your stepdaughter, Isobel,[11] was born in December 2003. She was aged between 12 and 18 when you offended against her.[12]
[11]A pseudonym.
[12]Charges 1, 3 – 8.
17Your stepdaughter, Bethanie,[13] was born in December 2004. She was aged between 15 and 18 when you offended against her.[14] She was diagnosed with ADHD and Aspergers Syndrome.
[13]A pseudonym.
[14]Charges 9 –12.
18Your stepdaughter, Katy,[15] was born in May 2002. She was aged between 13 and 14 when you offended against her.[16]
[15]A pseudonym.
[16]Charge 2.
Offending against Isobel
Incident 1
19From 2016 when Isobel was 12 years old, you began grooming her for the purpose of a sexual relationship, which later ensued. During your travels for work across Northern Victoria, Isobel would often accompany you. You normalised Isobel sleeping on the same bed as you, despite another bed often being available for her to sleep in by herself. Around this time Isobel stopped calling you “Dad” and began calling you “Fudder”, a nickname that was given to you by her.
20You displayed affection towards Isobel in the form of holding hands, cuddling in bed, kissing on the lips, showering naked together, and encouraging her to remove her clothing in front of you. This occurred so frequently that Isobel understood this behaviour to be a normal father/daughter relationship.
21On 5 April 2016 while on a trip in Mildura, you encouraged Isobel to remove her clothing until she was naked and lay next to you on a bed underneath the fan due to the heat.
22During a trip to New South Wales in 2016, you encouraged Isobel to remove her clothes until she was naked and have a spa with you while you were naked as well.[17]
[17]This does not form part of charge 1.
23During 2016, you began to enforce in Isobel that she had a hole inside of her that could only be filled by you, and that she needed you to keep her safe.
24From June 2016, after moving to the family home in a suburb in Melbourne, you would regularly go into Isobel’s bedroom during bedtime. You would get into bed with her and cuddle her from behind. This continued at the new family home from February 2017.
25In December 2016, for Isobel’s 13th birthday, you gifted her a commitment ring; a white gold ring with nine stones. The understanding between Isobel and you was that you were in a relationship from that point on and she was not to date any other boys and was committed to you. (Charge 1 - Grooming for sexual conduct with a child under 16).
Incident 2
26You and Isobel went on a camping trip to South Gippsland from 19 to 23 March 2018. Isobel was 14 years old at the time. She was meant to go on a Year nine school trip but did not do so. Instead, you offered to take her on this private camping trip. While Isobel was naked and showering, you entered the shower naked and began washing her back.
27While sharing a bed in a tent you began cuddling Isobel from behind with your arm around her waist area. You then moved your hand up her top and cupped her bare breast with your hand. (Part of charge 3 – sexual assault of a child under 16).
Incident 3
28Shortly after the camping trip, in April 2018, after Isobel and the other family members had gone to bed, you entered Isobel’s bedroom. You knelt on her mattress which was on the floor. You placed one hand up her singlet top and cupped her bare breast while placing your other hand down the inside of her pyjama shorts. You began rubbing her clitoris and touching the opening to her vagina and continued doing this for approximately five minutes. (Part of charge 4 - sexual penetration of a stepchild).
29From this point on, you entered Isobel’s bedroom almost every night, touching her bare breast and bare vagina. This did not occur when your wife was home.
Incident 4
30On another occasion, one week after the incident in April 2018, you similarly entered Isobel’s bedroom at night and touched her bare breast and her vagina underneath her clothing, before penetrating her vagina with your fingers. (Part of charge 3 - sexual assault of a child under 16) (Part of charge 4 - sexual penetration of a stepchild).
31As Carolynn left for work early in the morning, you insisted that Isobel shower naked with you each morning. On an occasion for which I am sentencing, you washed Isobel’s entire body, touched her breasts, touched her vagina, and digitally penetrated her. (Part of charge 3 – sexual assault of a child under 16) (Part of charge 4 - sexual penetration of a stepchild). Although I am sentencing you in respect of one occasion, this occurred on a regular basis.
Incident 5
32Between May and August 2018, you and Isobel were sitting on the couch watching a movie. Carolynn was out shopping with her other two daughters. Isobel was laying on the couch when you removed her pants and underwear. You touched and rubbed Isobel’s vagina and clitoris, before digitally penetrating her. You then placed your head between her legs and began performing oral sex on her for about 15 minutes. (Part of charge 4 - Sexual penetration of a stepchild) (Charge 5 - Sexual penetration of a stepchild).
Incident 6
33On an occasion between August 2018 and September 2018, Isobel was sleeping in your bed as Carolynn was away on a work trip. It was late at night when you began touching and rubbing Isobel’s breasts and vagina. (Part of charge 3 - Sexual assault of a child under 16).
34You then removed your underwear and placed Isobel’s hand on your erect penis and began guiding it up and down the shaft of your penis. (Part of charge 3 - sexual assault of a child under 16).
35You then told her that you wanted her to perform oral sex on you. You placed your hand on the back of her head and guided your penis into her mouth. You then continued to move your penis in and out of her mouth using one hand to push her head back and forth onto your penis and the other hand to masturbate your penis into her mouth. This continued for approximately five minutes before you ejaculated into her mouth. She swallowed your semen. (Part of charge 6 - Sexual penetration of a step-child).
Incident 7
36In October 2018 you began regularly talking to Isobel about penetrating her vagina with your penis and taking her virginity. She was still only 14 years old.
37In October 2018, you and Isobel stayed at a holiday park in Bendigo for several nights. During this stay you digitally penetrated Isobel’s vagina and she performed oral sex on you. (Part of charge 4 - sexual penetration of a stepchild) (Part of charge 6 - sexual penetration of a stepchild).[18]
[18]While I am sentencing for one occasion of digital penetration and one occasion of oral penetration, these penetrative acts occurred on other occasions during the stay in Bendigo.
38The family then moved to a new house near Bendigo. You and Isobel moved in on 13 October 2018, a few days before the rest of the family joined you. On one of the nights before the family joined you, Isobel was in bed with you. You touched her breasts and vagina before penetrating her vagina digitally. (Part of charge 4 - sexual penetration of a stepchild).
39You then placed Isobel’s hand on your erect penis and began using her hand to masturbate yourself. You spoke with her about having sexual intercourse, before lying on top of her and guiding your penis into her vagina for approximately two minutes, thrusting it in and out, before ejaculating inside her. Isobel went into the bathroom and noticed she was bleeding from her vagina. (Part of charge 7 - sexual penetration of a stepchild).
40Following this occasion, you began penetrating Isobel’s vagina with your penis on a regular basis. This would occur in your bedroom, in Isobel’s bedroom and in the workshop shed at this new property.
Incident 8
41Around November 2018, you had a conversation with Isobel about having anal sex with her. The following night, you and Isobel went to bed together in your bedroom. Both of you were naked. You instructed Isobel to lay on her stomach. You spread her legs to the outside of your knees and placed your penis into her anus. You penetrated her anus with your penis for a short period of time, thrusting in and out, before ejaculating inside her anus. (Part of Charge 8 - sexual penetration of a stepchild).
42You continued to penetrate Isobel’s anus with your penis on approximately a monthly basis. You used it as a bargaining tool in exchange for gifts or rewards.
Incident 9
43In September 2019, the family moved to a new house still near Bendigo. I am sentencing you for a single occasion when you penetrated Isobel’s vagina with your fingers and penis, her mouth with your penis, and her anus with your penis. However, these penetrative acts occurred on an almost daily basis while you lived at this house. (Part of Charge 4 - sexual penetration of a step-child) (Part of Charge 6 - sexual penetration of a stepchild) (Part of Charge 7 - sexual penetration of a stepchild) (Part of Charge 8 - sexual penetration of a stepchild).[19]
[19]Part of Charge 4, 6, 7 and 8 relate to a single incident.
44Isobel believed and was manipulated by you into believing, that she was in a genuine romantic relationship with you. She wrote letters to you and gave you cards. She also gave you gifts.
45In July 2020, you opened a bank account in your name. However, you gave access to Isobel through the banking application. You obtained a personalised Geelong Cats debit card for her to use.
46At the same time you activated a joint email address, that both you and Isobel had access to. The email address included your and Isobel’s initial. You told Isobel that the bank account and email address were for when you left her mother to commence a public relationship with her. You told her you would marry her and have a child together.
Incident 10
47In January 2021, the family moved to another new house. Katy moved to Melbourne shortly afterwards and Carolynn would live with Katy during the week. Carolynn’s intention was to return home on the weekends, however, this was not possible because of Covid-19 restrictions for most of the year. As a result, you Isobel and Bethanie lived at this new property together. Isobel and Bethanie participated in home-schooling.
48The layout of this house consisted of a shed with open plan living and little privacy. Bedrooms were separated by shelving units, with no doors or walls. Isobel slept in your bedroom most nights. I am sentencing you in respect of a single occasion when you penetrated Isobel’s vagina with your fingers, and her mouth, vagina and anus with your penis. Bethanie was disturbed hearing you penetrate Isobel, and would go to sleep using earplugs. These penetrative acts occurred almost on a daily basis at this property. (Part of Charge 4 - sexual penetration of a step-child) (Part of Charge 6 - sexual penetration of a stepchild) (Part of Charge 7 - sexual penetration of a stepchild) (Part of Charge 8 - sexual penetration of a stepchild)[20]
[20]Part of Charge 4, 6, 7 and 8 relate to a single incident.
Incident 11
49In November 2021, you along with Isobel, Bethanie and Carolynn moved again to a new house. Katy continued residing in Melbourne. Carolynn would live with Katy during the week. I am sentencing you in respect of a single occasion when you penetrated Isobel’s vagina with your fingers, her mouth with your penis, and her vagina and anus with your penis. However, these penetrative acts occurred on an almost daily basis at this property. (Part of Charge 4 - sexual penetration of a stepchild) (Part of Charge 6 - sexual penetration of a stepchild) (Part of Charge 7 - sexual penetration of a stepchild) (Part of Charge 8 - sexual penetration of a stepchild).[21]
[21]Part of Charge 4, 6, 7 and 8 relate to a single incident.
Incident 12
50On the morning of Isobel’s 18th birthday in December 2021, you and Isobel showered naked together. While in the shower, you penetrated her vagina with your penis. (Part of Charge 7 - sexual penetration of a stepchild).
Incident 13
51Sometime between 12 and 19 December 2021, Isobel informed you that your relationship was over. You were upset and went into Isobel’s bedroom. You convinced her to sleep in your bedroom that night. Once in your bed, you penetrated Isobel’s vagina with your penis. She eventually pushed you off her. (Part of Charge 7 - sexual penetration of a stepchild). You were intoxicated and fell asleep on the bed.
52Isobel moved out of this property at the end of November 2022.
Offending against Bethanie
Incident 1
53From September 2019, when Bethanie was 14 years of age, you began grooming her in order to have a sexual relationship with her. You had conversations with Bethanie about starting an intimate relationship with her, similar to those you had with Isobel. You introduced to her the idea that Isobel could be her replacement mother. You struck a deal with her that she could be part of their group if she treated Isobel as her mother, and did as Isobel asked. Bethanie agreed because she looked up to Isobel. It was at this time that both Isobel and Bethanie stopped referring to Carolynn as mum and instead called her by her name.
54You would often be present when Bethanie was showering naked. (Charge 9 – Grooming for sexual conduct with a child under 16 years)
Incident 2
55Between 1 June 2020 and 31 August 2020, you overheard Bethanie telling Isobel that she wanted to shave her pubic hair but was not sure how. You offered to help Bethanie shave her pubic hair with an electric razor. Bethanie lay on her bed and you shaved her pubic hair. While doing so, you stroked the opening of Bethanie’s vagina and anus with your finger. Bethanie was 15 years old when this occurred. (Charge 10 – Sexual Assault of a Child under 16).
56Bethanie panicked and asked you to stop. Isobel and another girl were present in the shed at the time but were not able to see the incident. You became angry with Bethanie as you were worried that Isobel would overhear her asking you to stop.
57From this time onwards, you regularly touched Bethanie’s buttocks, vagina and breasts over the top of her clothing whenever the opportunity arose. After the incident involving shaving her vagina, you spoke to Bethanie about sexually penetrating her and losing her virginity to you. It was agreed that Bethanie would receive special treatment as Isobel did in terms of attention, and receiving gifts, and she would eventually give you her virginity.
58You would often threaten Bethanie to send her back to her biological father, of whom she was afraid, or kick her out of the family home if she tried to tell anyone about the sexual assaults or grooming.
59After Isobel ceased the sexual relationship with you in December 2021, your attention shifted towards Bethanie. You began holding Bethanie’s hand in public, kissing her on the lips, touching her thighs, and touching her buttocks, vagina and breasts over the top of her clothing. This also included kissing her breasts over the clothing. This conduct increased to a daily basis throughout 2022.
Incident 3
60On an occasion between 26 December 2021 and 31 January 2022, you entered Bethanie’s bedroom and placed your hand up Bethanie’s top, touching her bare breast. Bethanie panicked and asked you to stop (Charge 11 – Sexual Assault of a Child aged 16-17 under Care Supervision or Authority).
61You continued to sexually assault Bethanie on a daily basis. The two of you were together most of the time as you lived and worked together doing fencing work. You insisted on applying sunscreen to Bethanie when you were fencing. You would apply it to her chest and upper thighs. You did not allow her to apply it to her own body.
62You became increasingly impatient with Bethanie and continued to encourage her to have penile-vaginal intercourse with you. On 13 February 2023, you informed Bethanie that you would be taking her virginity on Sunday 18 February 2023, calling it “Super Snuggle Sunday.”
Incident 4
63On 16 February 2023, Bethanie was in her bed lying on her side. You entered her bedroom and cupped her breast over the top of her clothing and pressed hard against her vagina with your hand over the top of her pyjamas. Bethanie was now 18 years of age. (Charge 12 – Sexual Assault).
Offending against Katy
64When Katy was 12 or 13 years of age, she began going with you on work trips in Country Victoria and the Riverina area. On one occasion in a hotel room, you showed Katy pornography, depicting a male and female having penile-vaginal intercourse, on your iPad.
65On another occasion, in New South Wales, you again showed her pornography on your iPad. Katy was still 12 or 13 years of age. You took a photograph of Katy’s vagina with no underwear on and showed her the photograph. The purpose of doing this was to show Katy what happened to her body after watching pornography, in that her vagina became ‘wet’.
66Between 1 June 2016 and 1 December 2016 when Katy was 14 years old, you entered Katy’s bedroom to say good night to her. You kissed her passionately on the lips using an open mouth for approximately five minutes. (Charge 2 - indecent act with the child under 16).
67On 18 February 2023, Isobel and Bethanie, along with their mother attended a police station and disclosed all the offending committed by you against them.
68You were arrested on 19 February 2023 and taken to Shepparton police station. During the course of the police interview, you remained silent in respect of your relationship with Isobel and Bethanie and the alleged offending.
69You were remanded in custody and have remained there since.
70On 21 February 2023, Katy disclosed the offending you committed against her to the police.
71On 10 March 2023, you were interviewed by the police in respect of the allegations made by Katy. You denied the alleged offending.
Victim impact
72I have had regard to the four victim impact statements tendered by the prosecution.[22]
[22]All four of them declared on 21 August 2023.
73Isobel read her victim impact statement aloud in Court.[23] As a result of your abuse, Isobel has been diagnosed with Post-Traumatic Stress Disorder, Major Depression, Obsessive Compulsive Disorder and Panic Disorder with associated agoraphobia. These conditions are described as moderately severe and will remain for the indefinite future. Isobel struggles with anxiety, suicidal thoughts and restlessness, including lack of sleep. Even when she does sleep, you continue to haunt her and are the centre of her frequent nightmares. You took away her self-worth and confidence. She hates looking at herself in the mirror and struggles with her appearance. She has issues with trusting other men and low self-esteem.
[23]Exhibit B (includes the email from psychiatrist).
74Isobel expressed carrying so much guilt for so many years. She states:
I thought that if I told anyone close to me, I would destroy their lives, my life and I would be solely responsible for the adverse reactions from your actions… This was an excruciating secret for me to carry and the burden of this was heavy for so many years, it still is. There are still the current difficult situations, and the sorrow, pain, and anger of those around me, that at times I feel are a direct impact of me confessing. For so long I had decided that this information would just stay with me. That I would carry it until I died because it was my responsibility not to actively destroy people around me.
75Bethanie’s victim impact statement[24] was read out in Court by Mr Cordy. She similarly suffers from panic and anxiety attacks. Like Isobel, she also wakes up from nightmares and tells herself that you have gone. She states that the trauma has aged her and she feels as though she is 32 years old rather than only 18. When her friends talk about fun times over the last ten years of their lives, Bethanie states:
Not only do I feel jealous, but I feel sad that I have nothing to tell, there is such a gap in my life, and I feel like I couldn’t even pretend to say something positive. I can’t compare stories with them because the best years of my teenage life was taken away by you.
[24]Exhibit D.
76Katy’s victim impact statement[25] was tendered but not read out in Court. She remains fearful of you and the fear is debilitating. The ongoing fear keeps her awake most nights which is impacting her emotional state. She describes herself as a mess stuck in the same space. Katy also struggles with panic attacks and anxiety in social settings.
[25]Exhibit E.
77The victim impact statement of the mother of your victims was read out in Court by her.[26] She is broken, filled with a sense of sadness and fears that she will never be able to trust again. She feels she is being tortured for a situation she never asked for. She struggles with a constant sense of guilt, questioning her failure as a mother and not being able to see through the fake life you led as a doting step-father and husband.
[26]Exhibit C.
78Sexual offending ruins the lives of those who are offended against and their loved ones. The impact of such offending is severe and ongoing.
79My summary of the victim impact statements does not do justice to the eloquent manner in which each one of your victims and their mother have expressed the very profound and devastating impact upon them of your spectacular betrayal.
Personal circumstances
80You were born in Melbourne in 1973 and are the youngest of four siblings. Your parents were hard-working, and ran motels over a number of years. In 1979 your father purchased and managed a lighting store while your mother raised you and your brothers.
81You were not particularly academically minded and left school during Year 11. You then commenced and completed an apprenticeship and went on to work for car dealerships.
82Your first relationship resulted in marriage in 2000. This relationship produced three children.
83Your father was hard-working but had issues with alcohol. He died in 1998 through complications relating to alcoholism. Your mother passed away from cancer in 2000.[27]
[27]I note Mr Newton’s report says that Mr McLain’s mother passed away in 2002.
84Like your parents, you have also worked hard and enjoyed a long history of regular employment. You have worked as a mechanic, as a sales advisor, and as a product support officer for an earth moving equipment company. Your most recent employment was as a fencing contractor.
85Like your father, you also developed a serious issue with alcohol abuse. You acknowledge the fact that you are an alcoholic.
86Despite your issues with alcohol, not only have you maintained employment, but have actively engaged in the local community on a voluntary basis. This has included volunteering with the Country Fire Association as a front-line firefighter for many years. It is also involved voluntary work with the Lions Club. Between 2021 and 2023 you were the president of a football and netball club. You were a foster carer between 2009 and 2016.
87You met and commenced a relationship with your victims’ mother in 2009 and got married in 2011.
Nature and Gravity of the Offending
88It cannot be any clearer, sexual offending against children is very serious. In DPP v Dalgliesh,[28] the Court of Appeal stated at [43]:
Society, the legislature and the courts are at one regarding the objective seriousness of sexual offending against children, and of incest in particular. Reflecting community views, courts have condemned in the strongest terms sexual offending against children by those responsible for their welfare.
[28][2016] VSCA 148.
89Further, at [126], the Court stated:
community values have an important role to play in assessments of the objective gravity of a particular offence. Sentencing for incest must reflect society’s denunciation of the sexual abuse of children and the profound harm which it causes. The very high maximum penalty underlines the seriousness with which the offence is regarded.
90The inherent seriousness of the offence of incest was expressed by Marks J in R v Sposito[29] at [4] as follows:
The offence of incest is particularly erosive of human relations and casts 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, the most prominent of which include the exploitation by the stronger will of the adult of the weaker will of the child, the physical and psychological sub ordination of the child to the perverted indulgences of the adult, the gross breach of trust placed in the offender by the victim and the community, and the irreparable fundamental damage to the victim.
[29]Unreported, Supreme Court of Victoria, Court of Criminal Appeal, 8 June 1993 (Marks, Hampel and McDonald JJ).
91Your offending has wreaked havoc upon an innocent family of four that you were a part of as a husband and a step-father. You were meant to care and protect them, nurture the children and help them grow with dignity through the most precious years of their lives. Their mother, who was often away for work, trusted you to care and look after her daughters. You breached the trust of your step-daughters and Carolynn in a most devastating and utterly cruel manner. Your offending was nothing less than heinous against three young and vulnerable girls. Your manipulation and psychological coercion, in particular of Isobel, in order to commit your offending was extraordinary. Not only were you their step-father, there was a significant age difference between you and your victims. You commenced by grooming Isobel and Bethanie in order to normalise sexual behaviour and went onto engage in sexual activity. Most of the offending occurred in their homes where they were entitled to feel protected and safe.
92The offending occurred over a protracted period between 2016 and 2023. Some of the offending against each victim occurred in parallel. You had ample opportunity to reflect and desist but chose to continue.
93While there is only one charge against Katy, it was not isolated and must be viewed in its full context. The passionate open mouth kiss lasting some five minutes occurred after you had introduced her to pornography. She was only 14 years old at the time of this offence.
94The offending against Bethanie commenced by grooming her at the age of 14. You committed the first contact offence against her when she was 15 and the offending continued after she turned 18.
95I must make some separate observations in respect of the offending against Isobel.
96Your offending against Isobel was particularly heinous.
97You commenced grooming her when she was only 12 years old. The grooming occurred over a period of time not merely by words but sexual conduct. You re-enforced the fact she was in a relationship with you, and you alone, by gifting her a commitment ring.
98In order to satisfy your perverted sexual desires you utilised Isobel in the most extreme manner, having no regard whatsoever for her welfare. You employed psychological manipulation, including giving her gifts. You opened a bank account, giving her authority to use it as well as setting up a joint email address. You turned her against her mother telling her you would marry her and have a child with her. The offending involved repeated penetrative acts from digital penetration of her vagina, penile penetration of her vagina and her anus and penetration of her mouth with your penis. There was also one act of you penetrating her vagina with your tongue. These penetrative acts commenced when she was 14 years old. They continued until she was 18.
99The first offence of penile vaginal penetration occurred when Isobel was only 14 years old. On this occasion, she bled from her vagina and you placed her at risk of both pregnancy and sexually transmitted diseases as you ejaculated inside her. On the first occasion you penetrated her mouth, you ejaculated in her mouth and she swallowed your semen. Similarly, the first incident of anal penetration resulted in you ejaculating inside her. She was only 14 years old at the time of these incidents.
100While charge 6 relates to a single incident of you penetrating her vagina with your tongue, charges 3, 4, 6, 7 and 8 are rolled up charges. In respect of these rolled-up charges, while the maximum sentence remains the same as if I was sentencing for a single incident, I must take into account the totality of the offending represented by these charges.
101The victim impact statements, make plain the profound impact your offending has caused and continues to do so.
102I have also taken into account that the offending in respect of Isobel occurred against a regular backdrop of uncharged abuse. While you do not fall to be sentenced for the uncharged conduct and it does not aggravate your offending, the context in which you committed the offending for which you are to be sentenced, does not allow you to say it was limited to only the charged acts.
103The uncharged acts relating to Bethanie and Katy are also relevant in a similar manner.
104I hope by emphasising the features that make your offending serious continues to bring home to you the path of destruction that you embarked upon, and only you are responsible for.
105Further, I regard your moral culpability as being extremely high. You absolutely knew what you were doing was wrong. This is not a case where your moral culpability is anyway diminished as a result of any Verdins[30] or Bugmy[31] considerations.
[30]R v Verdins (2007) 16 VR 269.
[31]Bugmy v The Queen (2013) 249 CLR 571.
Prosecution submissions
106On behalf of the prosecution, Mr Cordy reiterated what is not in dispute, namely the very serious nature of the offending. Mr Cordy alluded to some of the factors impacting upon the objective gravity of your offending. He highlighted the grave breach of trust, the psychological manipulation, and the significant and ongoing impact of your offending upon the three girls and their mother. Mr Cordy submitted that there was very little by way of mitigation other than the early pleas of guilty. He acknowledged your good character but submitted it should be given less weight. In respect of remorse, Mr Cordy submitted that despite your pleas of guilty, there was no genuine evidence of remorse. He referred me to the transcript of the pre-text call between you and the victim’s mother, submitting there was not even a hint of remorse during that call. On the contrary, you engaged in victim blaming and were more interested in rescuing your marriage.
107Mr Cordy highlighted the prominent sentencing purposes, including general deterrence and denunciation. In addition, he submitted that specific deterrence, just punishment and protection of the community were also important.
Defence submissions
108On your behalf, Mr Pyne presented a thorough and realistic plea. He began by acknowledging the very serious nature of your offending. He accepted that the offending was protracted against three victims. It represented a grave breach of trust and involved serious psychological manipulation.[32]
[32]These were, of course, only some of the matters impacting the gravity of the offending that Mr Pyne highlighted.
109He conceded that the impact of this offending upon your victims is profound and life-long.
110Mr Pyne accepted that the offending must attract condign punishment and that a significant term of imprisonment was inevitable.
111All of these concessions were entirely appropriate.
112Mr Pyne tendered his written plea submissions dated 5 September 2023 and 13 November 2023,[33] a bundle of certificates[34] and a reference from your brother dated 10 September 2023.[35]
[33]Exhibit 1 and Exhibit 4.
[34]Exhibit 2 (included a letter dated 9 June 2023 regarding the ATLAS remand program).
[35]Exhibit 3.
113In addition, the court ordered psychological report prepared by Dr Joseph Sakdalan, dated 3 November 2023, was also tendered.[36]
[36]Exhibit 5.
114In mitigation, Mr Pyne relied upon the following matters:
(i)Early pleas of guilty.
(ii)Remorse.
(iii)Good character.
(iv)Good prospects of rehabilitation.
Pleas of guilty
115There is no doubt that the most significant mitigating factor are your pleas of guilty.
116I accept Mr Pyne’s submission that your guilty pleas are extremely valuable. They were entered at an early stage in circumstances where your victims have not been challenged. The fact that your victims have been vindicated and not been subjected to ongoing trauma associated with the prospect of giving evidence is significant. Your pleas have also saved considerable court time and expense. They demonstrate that you have taken responsibility for your conduct and have facilitated the course of justice.
117Your pleas of guilty were indicated in August 2023. Therefore, you are entitled to an additional and palpable discount, having indicated your pleas when this Court was still facing a considerable backlog of trials.[37]
[37]Worboyes v The Queen (2021) 96 MVR 344, 356-7 [35] – [39]. See also Rossi v The Queen [2021] VSCA 296 [13] and Henderson (a pseudonym) v The King [2021] VCC 17 [103].
Remorse
118Mr Pyne submitted that you are now remorseful and all the material suggests that you have good prospects of rehabilitation. He relied upon the report of Dr Sakdalan.
119Dr Sakdalan states that you expressed remorse and did not appear to overtly minimise your offending. You acknowledged your offending was wrong and that your “moral compass was broken.”[38]
[38]Dr Sakdalan’s psychological report (Exhibit 5) [32] –[34].
120I am prepared to accept that your sentiments about the offending to Dr Sakdalan, along with your pleas of guilty, are indicative of remorse.
121However, it is important that I highlight that when first challenged about the offending by Carolynn during a phone call on 18 February 2023,[39] you displayed not a scintilla of remorse. You denied any offending in relation to Bethanie and Katy. You denied hurting the girls. In respect of Isobel, you appeared to suggest that she was a willing participant and that you did not coerce or force her. You did not co-operate with the police following your arrest on 19 February 2023. Of course, you were entitled to exercise your right to silence.
[39]Exhibit F.
122Demonstrating genuine remorse at an early stage would clearly attract greater mitigatory value. However, I accept that contrition can develop over time. As I said, I am prepared to accept that having reflected on your appalling conduct while in custody, you have gained insight into your wrongdoing. You have gradually developed remorse and accepted your wrongdoing by pleading guilty at the earliest stage.
Good character
123My Pyne also stressed your prior good character which extends beyond having no convictions or findings of guilt. In particular, he highlighted your contribution to the community. You were a front-line voluntary firefighter with the Country Fire Authority for many years. This included front line duties during the Black Saturday fires in 2009. You have been a contributing member of the Lions Club. You have coached netball and football teams and been involved in providing foster care. You have maintained consistent employment throughout your adult life.
124I have had regard to your brother’s written reference.[40] Without in any way seeking to minimise your offending, he confirms your positive community contribution.
[40]Exhibit 3.
125My Pyne submitted that s5AA of the Sentencing Act 1991 was not engaged. I accept that. In any event, the prosecution did not allege that your good character was of assistance in the commission of this offending.
126However, as Mr Pyne accepted, although your good character is important, in circumstances where you have committed grave offending against children, which require emphasising punitive sentencing purposes including general deterrence, your good character must be afforded reduced weight.
Rehabilitation
127In terms of rehabilitation, you have completed a number of courses in custody. This has included drug and alcohol programs.[41] You are also attending Alcoholics Anonymous.[42]
[41]See Exhibit 2. Also [21] of written submissions filed by defence (exhibit 1).
[42]Dr Sakdalan’s psychological report (exhibit 5) [20].
128According to Dr Sakdalan, you have developed a routine in custody, involving physical activities and attending educational programs in IT, maths, horticulture and first aid. You have maintained contact with pastors.[43]
[43]Ibid [8].
129You have maintained contact with your brothers and your eldest son. Your brother who has provided a reference, has attended court hearings and maintained his support despite the difficult circumstances. However, your remaining biological children are upset at your conduct and have not yet contacted you.[44]
[44]Ibid [9]. I was informed the eldest son has now made contact via phone.
130A comprehensive risk assessment undertaken by Dr Sakdalan suggests that overall you pose a moderate risk of sexual recidivism.[45]
[45]Ibid [56] and [67]. See also [46] – [57] detailing the full risk analysis.
131Dr Sakdalan’s assessment further reveals:
(i)That you have had a long standing history of heavy drinking commencing at the age of 17, which only ended upon your arrest and remand. You were often intoxicated when committing the offending. Accordingly, you meet the criteria for a diagnosis of Alcohol Use Disorder, described as severe and in early remission.
(ii)You described grappling with anxiety from your developmental years, and poor self-esteem. You dealt with it by abusing alcohol.[46]
(iii)Psychometric testing revealed that your depression[47] and anxiety[48] scores fell in the severe range.[49]
(iv)You would have met the diagnosis of Paedophilic Disorder around the time of the offending. It is difficult to ascertain whether deviant sexual interest and arousal remains. This can be further explored during treatment.[50]
(v)You expressed motivation in engaging in treatment to address your offending conduct, psychological and risk issues.[51]
(vi)It is recommended that you engage in group based sexual offender treatment, psychological counselling and alcohol abuse treatment.[52]
[46]Ibid [16], [18] – [19], [23], [32], [61].
[47]Dr Sakdalan suggested that there may have been past partial problems with depression that remained undetected – [52].
[48]Dr Sakdalan concludes that the offender likely had a Social Anxiety Disorder which remained undiagnosed and untreated – [61].
[49]Ibid [40] – [41].
[50]Ibid [66].
[51]Ibid [68].
[52]Ibid [69] – [71].
132Having regard to Dr Sakdalan’s psychological report and opinions, I am prepared to accept Mr Pyne’s submission that you have relatively good prospects of rehabilitation.
133Although not in a Verdins[53] sense, I am prepared to give some limited weight to your severe levels of depression and anxiety making imprisonment more difficult.[54] As I have already stated, you have developed a routine in prison and keep yourself occupied.
[53]R v Verdins (2007) 16 VR 269 (‘Verdins’).
[54]R v Van Boxtel (2005) 11 VR 258.
Standard Sentence
134Sentencing requires taking into account many different matters. The standard sentence is one such factor and no more. The sentence specified as the standard sentence is, ‘the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence is in the middle of the range of seriousness’.
135The standard sentencing regime does not interfere with the instinctive synthesis approach the court must carry out which involves distilling all relevant factors to arrive at the appropriate sentence.
136The Court must only have regard to sentences imposed in cases where the standard sentence regime applied. Current sentencing practices are not determinative; they are no more or less important than any of the other factors which the court is required to consider. Each case ultimately turns on its own particular facts and circumstances.
137The sentence on all the charges attracting a standard sentence, will be under the prescribed standard sentence having taken into account the objective gravity of the offending as articulated earlier in these reasons, and your personal circumstances giving rise to mitigation. In particular, this includes your valuable pleas of guilty at the earliest stage and the additional Worboyes utilitarian benefit.
Serious Sexual Offender Provisions
138Pursuant to s 6B of the Sentencing Act 1991, upon conviction and being sentenced to a term of imprisonment on Charges 1 and 2, you fall to be sentenced as a serious sexual offender on Charges 3 to 12 on the Indictment. Pursuant to s 6D of that Act, in determining the length of any sentence on Charges 3 to 12, I must regard community protection as the principal purpose for which the sentence is imposed. It has not been suggested, and nor do I consider it appropriate in this case, that a disproportionate sentence is necessary to achieve the protection of the community.
139Pursuant to s 6E of the Sentencing Act, there is a presumption of accumulation with regards to sentencing for serious sexual offender offences. However, I must bear in mind the overarching principle of totality and the need to avoid a crushing sentence. I must ensure that the totality principal is applied in a manner that does not undermine the legislative policy inherent in s 6E of the Sentencing Act.[55]
[55]Gordon v R [2013] VSCA 343 at [74].
140There are a number of rolled up charges. I am alive to the fact that many of the occasions of offending reflected across more than one rolled up charge occurred during the one incident. I have borne that in mind when sentencing, and considering cumulation and totality.
141I have carefully considered all relevant factors and circumstances.
142In arriving at the total effective sentence, I have imposed sentences on each charge that I consider to be appropriate and then consider the question of totality of your criminal conduct by directing appropriate cumulation. I have looked at the total effective sentence to ensure it is reflective of your overall criminality and that it is not crushing.[56]
[56]DPP v Jones [2013] VSCA 330 [90].
143Having done so, Mr McLain, you are convicted on all 12 charges and sentenced as follows:
· On Charge 1, grooming for sexual conduct with a child under 16, you are sentenced to 2 years and 3 months’ imprisonment.
· On Charge 2, indecent act with a child under 16, you are sentenced to 5 months’ imprisonment.
· On Charge 3, sexual assault of a child under 16, you are sentenced to 3 years and 6 months’ imprisonment.
· On Charge 4, sexual penetration of a step-child, you are sentenced to 8 years imprisonment.
· On Charge 5, sexual penetration of a step-child, you are sentenced to 5 years’ imprisonment.
· On Charge 6, sexual penetration of a step-child, you are sentenced to 9 years and 6 months’ imprisonment.
· On Charge 7, sexual penetration of a step-child, you are sentenced to 9 years and 10 months’ imprisonment.
· On Charge 8, sexual penetration of a step-child, you are sentenced to 9 years and 6 months’ imprisonment.
· On Charge 9, grooming for sexual conduct with a child under 16, you are sentenced to 1 year and 8 months’ imprisonment.
· On Charge 10, sexual assault of a child under 16, you are sentenced to 2 years and 6 months’ imprisonment.
· On Charge 11, sexual assault of a child aged 16 or 17 under care, supervision or authority, you are sentenced to 9 months’ imprisonment.
· On Charge 12, sexual assault, you are sentenced to 9 months’ imprisonment.
144The sentence on Charge 7 will be the base sentence. I direct that 5 months of the sentence on Charge 1, 2 months of the sentence on Charge 2, 8 months of the sentence on Charge 3, 14 months of the sentence on Charge 4, 9 months of the sentence on Charge 5, 14 months of the sentence on Charges 6 and 8, 6 months of the sentence on Charge 9, 13 months of the sentence on charge 10, 2 months of the sentence on charges 11 and 12 be served cumulatively upon each other and on the base sentence on Charge 7.
145This makes a total effective sentence of 17 years and 3 months’ imprisonment.
146I direct that you serve a non-parole period of 13 years’ imprisonment.[57]
[57]Pursuant to Sentencing Act 1991 s 11A(4), the non-parole period must be at least 60 per cent of the head sentence.
Serious Sexual Offender
147In relation to Charges 3 through to 12, pursuant to s6F(1) of the Sentencing Act, you are sentenced as a serious sexual offender and I order that this fact be entered into the records of the Court.
Pre-sentence Detention
148Pursuant to s 18 of the Sentencing Act 1991, the period of 451 days of pre-sentence detention, not including today’s date, is hereby declared as having already been served in respect of this sentence, and I order that such declaration and its details be entered in the Court’s records.
Section 6AAA declaration
149Pursuant to s 6AAA of the Sentencing Act, I indicate that had you pleaded not guilty and been convicted I would have sentenced you to a term of 21 years’ imprisonment with a non-parole period of 16 years.
Sex Offender Registration
150Pursuant to the relevant provisions of the Sex Offenders Registration Act 2004, registration is mandatory in relation to these offences and the reporting period is life. Upon your release from prison, you must report your personal details to Victoria Police and continue to comply with the reporting obligations. You will be sent an acknowledgement form for signing in due course and will be provided with a document setting out your reporting obligations upon your release and the consequences of any breach. It is an offence punishable by a term of imprisonment to fail, without reasonable excuse, to comply with your reporting obligations.
Other orders
151I grant the disposal and forfeiture orders.
Charge 3 (5 occasions), charge 4 (9 occasions), charge 6 (5 occasions), charge 7 (6 occasions), charge
8 (4 occasions).
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11
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