Director of Public Prosecutions v Morgan (a pseudonym)
[2024] VCC 90
•9 February 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT GEELONG & MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RONALD MORGAN (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Trial: Geelong. Plea: Melbourne | |
DATE OF HEARING: | Trial 24-31 October 2023; Verdict: 31 October 2023 Plea: 1 February 2024 | |
DATE OF SENTENCE: | 9 February 2024 | |
CASE MAY BE CITED AS: | DPP v Morgan (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 90 | |
REASONS FOR SENTENCE
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Catchwords: Trial indictment with 8 charges. Mixed verdicts. Sexual assault of a child aged 16 or 17 under care supervision or authority x6. 3 guilty verdicts (Charges 2, 4 and 5). Two charges of sexual penetration of a stepchild (incest). Guilty verdict to Charge 3 only; Plea indictment: one Commonwealth charge of use of carriage service to cause offence. 57 years of age at time of sentence. No criminal history at all. Plea indictment: Worboyes v The Queen [2021] VSCA 169. Remorse. R v Verdins [2007] VSCA 102, limb 5. Standard sentence scheme for Charge 3 sexual penetration of stepchild; serious offender regime; Sex Offender Registration.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms D. Guesdon (at Trial) Mr N. Batten (at Plea) | Office of Public Prosecutions |
| For the Offender | Ms F. Fox | Adrian Paull Criminal Lawyers |
HIS HONOUR:
1 Ronald Morgan[1], you have pleaded guilty to the single charge of using a carriage service to cause offence - that is the charge on the plea indictment. You pleaded guilty to that charge on 5 July 2023 moments in advance of the special hearing conducted on that day.
[1] A pseudonym
2 There was also a trial indictment and attached to one of the prosecution plea documents (Exhibit A) is the long and pretty torturous chronology of that matter before the courts. Given the nature of those allegations, involving as they did sexual offending against a person with an intellectual disability, the video audio recorded evidence (VARE) procedure was adopted with the victim, Claudia Kelly[2], on 6 September 2020. Her mother, Hattie[3], also had an intellectual disability and for that reason the video audio recorded evidence procedure was utilised for her as well on a later date being 13 July 2021.
[2] A pseudonym
[3] A pseudonym
3 A special hearing was conducted on 5 July 2023 before another Judge (Judge Tiwana) where Claudia acknowledged the truth of her earlier video audio recorded evidence and was then cross-examined by defence counsel Mr Barreiro, who acted for you at that stage.
4 Claudia's mother’s evidence was pre-recorded before me in advance of the actual jury empanelment. A jury was empanelled on 24 October 2023. It was a very short trial in terms of the duration of the evidence. You elected not to go into evidence which of course was your right.
5 The jury was not required to return any verdict in relation to the use of carriage service matter. You had, after all, admitted your guilt of that matter and the sentencing task for that charge waited in the wings until the end of the trial process, which made perfectly good sense.
6 The jury returned mixed verdicts in relation to the trial indictment charges on 31 October of last year and I remanded you into custody on that day, following those verdicts.
7 You stand convicted of three charges of sexual assault of a child aged 16 or under 17 who was under your care, supervision or authority, as well as a single charge of sexual penetration of that same step-child. For ease of reference I will refer to that charge as one of incest.
8 So my sentencing task relates to a total of five charges spread across these two indictments.
9 The four trial indictment charges of which you have been convicted cover three different episodes, as Charges 2 and 3 were part of the same episode.
10 Now there are some different sentencing considerations given that you ran a trial in relation to one indictment and pleaded guilty to the single charge on the plea indictment that I have referred to. You are not to be punished for running a trial, that is clear enough. Equally clear though is that for the plea indictment I must take into account the stage and fact of your guilty plea and make such judgements, as can be made, as to the presence of remorse or contrition, as it is referred to in that Commonwealth sentencing exercise. There are no such steps involved in the trial indictment. You did not plead or offer to plead guilty. A jury found you guilty of those four charges and plainly there is no remorse. That much is conceded.
11 You are now 57 years of age and have no prior or subsequent criminal history at all.
12 The maximum penalties are correctly set out in the various documents filed on the plea. I say various documents, as the Crown point to the amended summary of prosecution opening for trial as providing a convenient precis of the factual setting, as well as the three other documents that have been filed since verdict dealing with the factual setting for the plea matter as well as the array of sentencing ancillary matters and sentencing submissions. I will come to these matters soon enough. I note that the incest is what is described in the Sentencing Act as a Category 1 offence where a custodial sentence is required. Nothing hangs on that at all in this case as it is accepted that a prison sentence is required here. Plainly that is the position.
13 You have been in custody from the day of verdict.
Facts
14 What then is the factual basis of sentencing.
15 It is simple enough to state in relation to the plea indictment. There is a very straightforward summary headed 'Summary of Prosecution Opening Upon Plea' dated 25 January 2024. That was marked as Exhibit A. Paragraphs 2 to 13 in that document set out the relevant facts. They are all agreed. I see no need to set them all out.
16 In broad summary, you were the stepfather of Claudia Kelly. You lived with her mother at the relevant time and had done so for many years. In fact you and Claudia’s mother, Hattie, had two children together. They, those children and Claudia and her other two siblings, lived in Hattie’s house in [location redacted]. Claudia was 16 years of age, and she had an intellectual disability. You plainly knew of that fact. Between 5 June and 5 September 2020 you sent a number of messages to her which are described in that summary that I have referred to. On 6 September, Claudia’s mother got wind of those messages purely by chance and she alerted her son who then alerted the police and the rest of course is history.
17 Police attended on 6 September 2020 and they seized and examined devices. The summary describes the style of messages and the images. In the interview conducted on that day – this is the formal police interview - you admitted sending the messages and that some were not appropriate, and some were, as you put it, 'a bit sexual'. As I say, you pleaded guilty to this conduct, though your discussion with the neuropsychologist suggested you had some reservations as to the inappropriateness of some of the messages. For what it is worth, he, the expert, had none. Your lack of contrition and acknowledgment is, by the way, confirmed in a written reference placed before me from Ms L[4]. I will come to that later in these reasons.
[4] A pseudonym
18 Anyway, I see no need to further summarise that conduct. The summary does that and the images are described, and indeed they were marked as exhibits on the trial. They included a moving image file of a head and shoulder shot of adults, seemingly from their movements, engaged in intercourse, though it is not explicit and is really implied from their movements. Another was an image, not a photograph, of a woman straddling a man in a suggestive fashion. As I say, the summary describes them and they are available for all to view. So much then for the plea matter. It is simple enough and frankly it is the least of your problems.
19 The trial indictment conduct for which you have been convicted is of course far more serious.
20 Whilst true that there is no agreed summary, your counsel concedes that the verdicts are easy enough to interpret. The jury was not satisfied beyond reasonable doubt of some of the alleged acts, hence acquittals were returned on Charges 1, 6, 7 and 8. You must get the full benefit of those acquittals. They were left in no doubt that you had touched the girl sexually in relation to Charges 2, 4 and 5 and that you digitally penetrated her in relation to Charge 3, the charge of incest.
21 Of course their verdicts were based on an assessment of the evidence placed before them in the form of the video audio recorded evidence of Claudia and Hattie, as well as the special hearing and the pre-recorded evidence, as well as some evidence from two other police witnesses. Your interview in edited form was also played.
22 It was, as I say, a very brief trial. The evidence spanned only a few hours.
23 I believe the evidence is adequately summarised in that amended summary of prosecution opening for trial dated 24 October 2023. Your counsel did not say otherwise. That has been marked on the plea as Exhibit C. That summary was after all based on the account that Claudia had given in the video audio recorded evidence (VARE), as well as the matters raised on the special hearing. It stands in a quite different position to a summary of prosecution opening based on a witness statement where a witness may be called and not actually swear up – that is not what happened here. I really see no need then to descend in great detail to the actual evidence citing VARE question numbers or special hearing page references for every act for which you have been found guilty. It is there for all to see. I will mention only a few of the individual questions and exchanges.
24 In a nutshell, Claudia was born on [DOB redacted]. As I have said already, she had an intellectual disability. You had been living with her mother for many years (seven or so) as I understand it. It follows you had been part of Claudia’s life for many years. You and her mother were engaged. Her mother said that it was like a father/daughter relationship and Claudia called you 'dad'. You lived in the family home, of course. You were the father of two of Claudia’s younger siblings. You were the father of those two and stepfather of the other three. You were plainly a large figure in her life. There was no issue taken at trial as to your being her stepfather, knowing that you were, or as to her age or with the fact that you were in a position of care, supervision or authority. It was an agreed fact that both she and her mother had an intellectual disability. The issue in the trial was the happening of the charged acts, not how they would be characterised if a jury was satisfied beyond reasonable doubt that they took place.
25 These acts happened, so say the jury in relation to the matters for which you have been found guilty. As the trial summary makes clear, Charges 2 and 3 were related. They were a single episode in the sense that one followed the other. On the morning of a school day in around February 2020 you and Claudia were in the loungeroom. She was in her pyjamas. Her mother was in another room, it would seem asleep. The siblings were elsewhere in the house. You grabbed her and put her on the couch and then touched her on the vagina. She froze. You would not let her go and she felt she could not stop you. You put your hand down her pants and you rubbed her vagina with your fingers - that is the subject of Charge 2. You then inserted a thumb into her vagina. She rolled way. That penetrative act is the subject of Charge 3, the charge of incest. In her video audio recorded evidence at Question 105 through to 131, she described the incident. She said that the act of penetration hurt. The preceding rubbing captured by Charge 2 went for a decent time, she thought 'probably 10 minutes maybe 'cause that’s why I froze'. See Question 126. No doubt that is an estimate and these estimates are very hard to make, I recognise that. By the time of the special hearing of course, she was a bit older and she had a better idea of her anatomy and how to describe it, and she described the rubbing on her clitoris. See transcript p19 of the special hearing.
26 Charge 4 was on a later date when she was in the kitchen. You approached her and slapped her on the bottom and grabbed and squeezed her bottom with your hands. This was over her clothes.
27 On another occasion, later in the year, she came out of the bathroom where she had been making a TikTok video, when you approached her from behind, grabbed her around the waist, bent her forward and started humping her from behind in the sense of thrusting your groin into her bottom area. It went for some minutes, she said 'a good five', though no doubt that was also an estimate. She made no noise as you told her to be quiet. See transcript p22 of the special hearing conducted on 5 July. She was clothed. So too were you.
28 The other conduct alleged to have taken place on that occasion was of course met with acquittals and you must get the full benefit of those verdicts obviously enough.
29 Now I have already mentioned the police attending on 6 September 2020 in response to the alleged sending of the inappropriate messages. You made admissions to that conduct. The police had spoken to Claudia and asked if anything else had happened and were told that it had. They had not at that stage conducted the formal video audio recorded evidence, of course, but they asked you broadly about any untoward physical sexual acts. You denied any inappropriate touching in the formal police interview conducted that day.
30 So much then for my summary of the offending. Obviously far greater detail can be found in the trial evidence, so for instance the VARE and the special hearing transcript. I believe my brief summary encapsulates the sentencing facts in this case.
31 I must sentence consistently with the verdicts that have been delivered by the jury.
32 As to the matter on the plea indictment, I sentence pursuant to the detailed agreed summary together with the actual images that were sent by you.
Impact
33 I turn now to the impact of your crimes.
34 In her evidence Claudia described how she felt violated and that your conduct made her feel weird, that as she put it; 'He’s supposed to be like a dad, and I keep telling him to be more like a dad but he never does.' See the VARE Question 275.
35 There were two impact statements in this case, one from Claudia and one from her mother. They were marked as Exhibit F. Claudia’s was read aloud by the prosecutor, her mother’s likewise, though in that there were plainly some inadmissible portions which by agreement were not read aloud. That was consistent with the approach set out in s8Q of the Sentencing Act. Though they exist within the filed document, of course I will not have regard to those inadmissible portions.
36 I will not set all this material out again in my reasons. I have read the impact statements again since the plea – indeed, I have read all the material. Again, I make plain, I will only act on the admissible portions. Your offending has led to deep impact upon Claudia in so many aspects of her life. She has had real difficulty with intimacy. She struggles with depression and anxiety, and it can hardly be surprising that she has some trust issues. She feels some shame, though she should not. She hates herself for what happened, though again, she should not. She was only a child. You breached this relationship, not her. She quit studies as the court case was causing stress and she wonders what lies ahead on the work front for her. She often thinks about what you did and she has trouble sleeping. She has lost a feeling of hope for the future and has a loss of self-esteem in the sense that she does not think that she actually deserves happiness. She puts on a brave face but does not think that people really understand how hard life has become for her. Her relationship with her mother has of course been deeply affected. There have been financial impacts, her anxiety and the like make it hard to work and study. She feels isolated and lonely and she has difficulty making new friends as she really cannot open up about what happened. None of this is in any way surprising, if I may say so.
37 Her mother has been affected as well. These acts took place in the house she shared with you. It has affected her relationship with her daughter. She has tried to stay strong for the three youngest children but it has not been easy and of course they have lost a father figure. The family unity has been fractured - that is what incest does. She remains in that house but that house feels sullied by the memories that it evokes.
38 I take into account the impact of your crimes. Regrettably it has been, and remains, very sizeable indeed.
In mitigation
39 Ms Fox who conducted the trial on your behalf also conducted the excellent plea in mitigation on your behalf last week. She relied upon a written outline of plea submissions dated 25 January 2024, as well as a brief report from Peter Tait, a psychologist, and a much lengthier report from a neuropsychologist, Dr Matt Treeby. There was also a bundle of three character references marked as Exhibit 4.
40 Ms Fox placed before the court ample detail as to your personal background, including details as to your early life including the family structure, your education and employment history and your physical and mental health predicaments. She highlighted the lack of any criminal history at all, that was very much front and centre in the course of the plea.
41 I should say that she abandoned any reliance on the physical health issues described in her outline, and Mr Tait’s account of those, including the diagnosis that Mr Tait made as to the somatic disorder referred to. The prosecutor had indicated that the Crown challenged those matters and that indication was given in advance of the plea, and Mr Tait was not called nor his opinion in those areas relied upon.
42 Ms Fox made submissions as to your prospects of rehabilitation.
43 She made some submissions to the court as to the level of objective seriousness of the various offences, as well as to the relevant sentencing purposes coming into play here. Many of these submissions addressed the absence of some other features of aggravation. She made some submissions as to current sentencing practice and placed before me two sentencing decisions of two of my fellow judges - three really as there was a resentencing exercise for one of those – and this was done as providing some guidance to the court. None of these cases was truly comparable and I really did not derive much assistance from that process.
44 She conceded the inherent seriousness of the offending, particularly that embraced by Charge 3, the charge of incest. She addressed me as to the Category 1 status of Charge 3 as well as the standard sentence scheme which applied only to that charge. She also made some submissions as to the impact of the serious offender provisions and the need for consideration of totality of sentence in this case.
45 In the realistic and very thorough plea conducted on your behalf, she relied principally upon the following matters in mitigation:
· Your relatively early guilty plea in relation to the plea indictment charge;
· Increased custodial burden arising from your post-traumatic stress disorder and the modest application of the fifth limb from the case of Verdins[5].
[5]R v Verdins [2007] VSCA 102 (‘Verdins’)
46 She relied heavily upon your previous unblemished background, obviously enough, but she conceded, as she had to, that a sizeable head sentence with a non-parole period was the only option open to the court in this case.
Prosecution
47 The trial prosecutor Ms Guesden was unavailable for the plea. Mr Batten stood in for the plea. He relied upon the various filed documents including the agreed summary for the plea indictment which I have referred to.
48 Most of the prosecution submissions were really quite uncontroversial, going as they did to established matters of sentencing principle or matters not in dispute.
49 There really was very little contest between the parties. Your counsel had, after all, conceded the inherent seriousness of the offending - she set out in her submissions why that was so. So did the Crown in their document and in brief oral submissions made to me. I just see no need to repeat all those matters. The contest that was flagged in Paragraphs 13 to 17 of the written prosecution sentencing submission in reply (Exhibit D), as to the opinion of Mr Tait, came to nought. As I have said, your counsel made plain she was not relying on those disputed aspects. The Crown did not challenge the existence of the post-traumatic stress disorder diagnosis or that the fifth limb of the case of Verdins might have some modest role to play, or that you were entitled to the benefits of your guilty plea on the plea indictment charge.
50 The Crown also addressed me as to the standard sentence case law. I interpose that in that task, the period of the standard sentence specified is the sentence for a middle of the range offence having regard only to objective factors affecting its seriousness. See Sentencing Act 1991 s5A(1)(b). The Court of Appeal has said that sometimes this notional mid-range can really be very difficult to identify. See the case of McPherson.[6]
[6]McPherson v The Queen [2021] VSCA 53
51 The prosecution argued that your moral culpability was high with no reductions, as sometimes are there to be made, and that the impact was large here. The Crown argued that taking into account all of the matters, Charge 3 fell at the mid-range taking into account objective and subjective matters.
52 The Director of Public Prosecutions of this State was calling for a head sentence and non-parole period in relation to the trial indictment, an outcome that was described as inevitable by your own counsel. They submitted that for the plea indictment, a non-custodial option would be within range, or failing that a prison sentence not necessarily adding to the length of your sentence.
53 I will come back a bit later to consider the various submissions made by the parties. As I say though, in this case there was hardly any disagreement between them on matters of principle, or for that matter, the application of those principles in the present case.
54 I will turn firstly though to your background, and I will do this relatively briefly.
Background
55There is much material before me as to your background. There is detail in the larger of the reports from Dr Treeby, as well as in the written outline of your counsel and in her oral submissions to me, as well as in the character references. I really have no reason not to act on what has been placed before me, with the exception of the challenged aspects of Mr Tait’s report and some claims from Ms L as to how she sees the 'lay of the land' in this case. I see no real point or utility setting out large slabs of your background in these reasons, which will be very long as is.
56By way then of executive summary, you were born in [DOB redacted], whether it was the [DOB redacted] or the [DOB redacted] is neither here nor there. When your particulars were taken, I thought you said [DOB redacted]. Other references, including the report of Dr Treeby and Mr Tait say [DOB redacted] - nothing hangs on that at all. Either way you are 57 years of age, turning 58 in [DOB redacted]. You were born in the Geelong region and apart from a decade working up in Mildura you have always lived in the Geelong area. You were one of [number of children redacted] raised mainly by your mother and grandmother. Contact was established with your father much later on. You describe it as a good early life and you maintain contact with two of your siblings. You left school in Year 9 and you had a number of unskilled jobs which are described in the materials. There is just no doubting that you have had a very decent employment record, up until 2018 when carpel tunnel syndrome, which had been diagnosed back in 2010, impeded your ability to continue on at work. You have been on jobseeker payments since, I was told.
57You were the victim of a king hit in 2008 for which you were awarded a small amount of crimes compensation, and whilst that did not lead to any ongoing physical issues, you developed an enduring post-traumatic stress disorder which is still moderate in its severity all these years later. There was ongoing treatment from Mr Tait over the years and there is coverage of that condition in that report and also in Dr Treeby’s report.
58Unlike many who sit in the dock you have had no issues with alcohol or drugs of dependence.
59I was told by your counsel that you have very simple interests and enjoy fishing.
60You have four children from three relationships. You have not seen the oldest son who is in his 30s since he was two years of age. The second oldest was a boy that you had the ongoing care of as he grew up. He is now 30 and you had been in communications with him prior to your reception into prison. The final two children are the children of the relationship with Claudia’s mother. You have not seen them since your arrest.
61You have no prior criminal history of any description nor anything occurring subsequently. You are then a genuine first offender but of course you have launched off into very deep water indeed, committing crimes such as these. It is not that unusual to have someone dealt with for these sorts of matters who has no criminal history whatsoever. Nonetheless, you are entitled to, and do call in aid, your past good behaviour. You have lived a law abiding and contributing life. I take that into account.
62I have the three references marked as Exhibit 4, and Ms Fox made a point of saying they were in the main relied upon to demonstrate the existence of some support for she recognised that each of the references had some issues. I must say I was none too impressed by aspects of two of the character references placed before me. There was a very strong symmetry as between your sister's reference and that of Mr F[7]. The layout of topics was virtually identical. Your counsel submitted that it was not that uncommon for a solicitor to provide some account to a witness about the class of topics that might be addressed. No doubt that is true and no doubt that is a sensible thing to do. The problem was the very strong relationship between the wording of the two documents, and more significantly, the inclusion of a completely nonsensical phrase in the second last paragraph. That was included in the second last paragraph of each document. Your counsel could not explain what was meant or how that could wind up in these two references. The fact is, either it has been copied by both of the authors from another document, or one has copied from the other. I really do not see any other way for that nonsensical phrase to have been replicated. I am not that impressed by that. However, I am not conducting a royal commission on the topic, the fact is that they, those two authors and Ms L, speak of what they know of you and whilst I am not impressed by the form of the two references I have just mentioned, I am not prepared to simply reject or discount the content. No doubt they are speaking of their observations of you over the years they have known you, what they have observed with their own eyes and the efforts that you have taken for others and the like – all those things that are described.
[7] A pseudonym
63Of course, I accept that you are far more than just the man who has committed these serious crimes. That they have observed that you have many characteristics that are positive. They all obviously believe the offending to be out of character, more likely from the tone and content they do not, or at least Ms L does not, accept that the offending took place. Ms L speaks of your attitude to the sending of the messages. You claim to her that they were innocent. She provides detail in support trying in a way to explain away and justify your conduct. I do not know why. In your own interview you admitted that some were inappropriate and some of them were a bit sexual. You have pleaded guilty to an offence and admit the elements as set out in that offence. It is a bit troubling that she sees nothing wrong with them. If that be so, she is the only one. I wonder whether she has actually seen these messages. The expert says they are obviously aberrant. Ms L’s reference indicates her disbelief of the allegations concluding that you are a kind soul who has been taken advantage of. Of course, I entirely reject that suggestion, the only person taken advantage of was your stepdaughter. By you. Ms L speaks of the impact upon you of losing contact with the two young children. I have no doubt that has been difficult, however, that is just what happens. Incest fractures family relationships. Claudia and two of her siblings have lost a stepfather, Hattie a partner or fiancé, and your two children, their father. Your acts against your stepdaughter have brought about these outcomes. I cannot take into account the impact upon your two children and nor am I asked to. The impact upon you is not something that can dominate my task. It can be given really only very modest weight. Of course it is hard to be in prison for the first time, harder still in that you have lost contact with your children. I do not ignore that fact at all. I take it into account, but it cannot be a large matter in my task.
Guilty plea
64 I turn now to some of the other matters raised on the plea. I deal firstly with the fact of your guilty plea, to the use of the carriage service offence. It was not a plea at the earliest opportunity. You pleaded not guilty in the Magistrates Court, and once up in this court a defence response dated 29 August 2022 was filed indicating that you would plead not guilty to all offences, including the carriage service offence, and that you specifically denied that you had used a carriage service to cause offence. It is not clear to me what issue was being taken, though it seems likely you were not challenging the sending but rather the conclusions to be drawn by reasonable persons. The chronology attached to Exhibit A discloses the matters which caused this trial to get bogged down. Ultimately on the very day of the special hearing on 5 July you pleaded guilty to this charge, which was Charge 8 on the original trial indictment. That took at least the court by surprise. That was, as I perceive, it the first indication of any plea. Thereafter, though, it got caught up, understandably, behind the other trial and then a separate plea indictment was filed in due course. Efforts were taken by your counsel to exclude any of that material coming before the jury in the trial matter. Whilst this was not a very early plea, or a plea at the earliest opportunity, it was still early enough, and I take that into account. I also take into account the extent of your co-operation with the police in making the admissions that you did in the interview. You made quite detailed admissions.
65 You have taken this reasonably early responsibility for this crime.
66 A trial was not required on that matter and nor were witnesses required to give evidence in relation to that matter. Claudia and Hattie were witnesses on the other matter though. As I say, reference was made to these images in the currency of the trial. There is still plainly some utilitarian benefit here.
67 You have facilitated the course of justice in these various ways and you must be rewarded for doing so.
68 I believe we are close to the point in time now where any future decision to plead guilty will not be met by any heightened sentencing benefit arising from the global pandemic. That is because not only have we moved beyond the global pandemic but the pandemic backlog in this court has now actually been cleared. We are operating in this court at pre-pandemic levels, as the Chief Judge announced late last year. However, you pleaded guilty in July of last year at a time when the backlog was still in existence and that announcement had not at that point been made. I believe it is appropriate to give the heightened Worboyes[8] benefit here. I will treat your guilty plea as worthy of extra weight for the many reasons set out in that decision.
[8]Worboyes v The Queen [2021] VSCA 169 (‘Worboyes’)
69 I take these matters into account in mitigation.
Remorse
70 Your counsel was explicit, both in the course of the plea and again today, in conceding that there was no remorse in this case in relation to either indictment. There plainly is not. It is not possible to even imply remorse from your guilty plea given statements made to the expert and to Ms L. As to the trial indictment, there was no plea offer and no acceptance of any wrongdoing. It was your right to run a trial but having done so there is no hint of remorse. I accept your counsel’s submission that there is no remorse in this case. That is not a feature of aggravation, it is simply the absence of a matter in mitigation that sometimes exists.
Verdins
71 I turn now then to the Verdins submission made on your behalf. Ms Fox argued that the fifth limb from the case of Verdins that you heard discussed had some modest application here. The Crown did not suggest that that finding was not open but ultimately of course it was for me to decide on the materials placed before me. That case of Verdins which you heard discussed deals with the impact upon the sentencing process of mental health or psychological conditions existing at the time of offence or sentence or both. That is very much a gross simplification of the case law but it is sufficient for present purposes. This limb, Ms Fox said, the fifth limb, was enlivened here and it relates to the increased prison burden arising from a mental health state, in this case the post-traumatic stress disorder described in the report. I do not doubt that the condition exists. Dr Treeby describes the condition as being moderate in its severity and describes the way that it can compromise a person’s ability to regulate stress, amongst other things. See Paragraph 66. The paragraph relied upon, in conjunction with Paragraph 66, was paragraph 73 where the expert gave his opinion that the post-traumatic stress disorder may compromise your ability to manage adversity in the custodial setting. The report does not go into any further detail as to the manner in which your burden of custody might actually be increased. Your counsel made it plain that the Verdins submission was not a major plank on the plea and that the report had some obvious limitations.
72 I am meant to approach these matters with a level of rigour. I have since the date of the plea considered whether the material before me is sufficient to discharge the onus that you assume on the plea to establish matters in mitigation. Ultimately, I am prepared to accept that there should be some modest application of the fifth limb of this case in your favour, that there is a basis to accept that the sentence will weigh more heavily upon you than it would on a person of normal health. It is your first time in custody at a mature age and in a setting where you have lost contact with your children. When I add those matters into the mix, it does seem reasonable to give some modest weight to this fifth limb. It is not a large matter in the sentencing exercise as was recognised by your counsel.
73 I have not gone chapter and verse through that report or Mr Tait’s. As I say, I have read them again since the plea as well. Dr Treeby’s report is more of use setting out as it does comprehensive details as to your background. He reports his discussions with you, including about the allegations. The various tests results are reported on. He described your level of functioning and the things that might be of benefit in terms of ongoing treatment. I found it to be a useful report.
74 Mr Tait’s report was far more limited and portions were not relied upon at all, as I mentioned earlier in these reasons. Ms Fox explicitly abandoned any reliance on the diagnosis of the somatic symptom disorder – see outline Paragraph 38 - as well as any submission as to physical health issues increasing your burden of imprisonment. See Paragraph 47. That report demonstrated though the existence of the diagnosis and the fact of ongoing issues and treatment over the years.
Rehabilitation
75 I turn then to your prospects of rehabilitation. It is actually very hard to make judgements as to those prospects in this case. It is true there are some real positives; you have none of the issues that so often get in the way of rehabilitation such as drug or alcohol issues or pervasive serious mental health issues contributing to the offending. You are 57 years of age and other than committing these crimes you have lived a law-abiding life. There are no prior criminal matters of any description, nor anything subsequent. You have a good employment record obviously. As I say, these are all positives.
76 The difficulty is you have committed these serious crimes and they are not isolated. Nor are they that dated. You were a mature man with no cognitive deficits and with nothing reducing your capacity to reason appropriately. There is no reduced culpability in this case at all. You knew exactly what you were doing and your moral culpability is high. You had been living with this family for seven years. You were part of the family You knew of Claudia’s age. You knew of her disability. We know as a fact that you sent those various texts. What on earth was going on in your head? She was 16. You knew that. Not just 16 but your stepchild, one that you then sexually exploited.
77 You are evidently remorseless. You even retreat from any suggestion of impropriety in relation to the matter for which you have pleaded guilty. You claim that the sexual allegations are all a set-up and yet you were the person who sent those texts. You do have some support but it is from people, some of whom it would seem, are likely to disbelieve the allegations. You vehemently deny any attraction to younger people stating to the expert 'I’m only attracted to 35 and older'. If I may say so, on its very face that is a pretty extraordinary thing for a man to say and it reeks of overstatement. You did perhaps protest too much to the expert.
78 There is no sensible explanation of your conduct other than as described by Dr Treeby at Paragraph 69 where he said: 'The most likely explanation for Mr Morgan’s behaviour is that he has a hebephilia sexual interest which he has behaviourally acted on.'
79 He suggests that you would benefit from sex offender treatment but he says it is just too early to know if that treatment will be effective. What will your attitude be to that program? We know your present attitude to the offending and it is difficult to see that changing in the short or even the long term. It really is quite impossible to know if treatment will be of any use.
80 Unlike some of the other cases I was referred to, here, there is no risk assessment at all. None. One would expect that your advancing age and your likely lack of exposure to young children in the future might reduce the ongoing risk.
81 It is likely that the Sex Offenders Registration Act limitations and your reporting obligations for life under that Act may serve to reduce your future risk upon your release.
82 I accept that the sentence I will soon impose will have a role in deterring you. The fact is it will be some years until you are released back into the community. You will be a good deal older, and as I say, I believe the risk is probably going to reduce as you get older. What is there though to suggest that the sexual interest which obviously motivated this offending is somehow extinct?
83 As I say, I have not found it easy to reach views as to your prospects of rehabilitation or as to the level of risk of re-offending. It seems to me that the parties were not too far apart in the submissions on this topic, if apart at all – ‘fair’ as opposed to ‘guarded’. Well, I can only be guarded. There is a risk of reoffence though not against this victim. I am prepared to accept that you have some prospects of rehabilitation. I am prepared to assess them as being fair. Beyond that though, it is very hard to make any further determination.
Standard Sentence Scheme
84 Let me deal with some of the intricacies of sentencing in this case. There was discussion about the standard sentence scheme. That scheme applies only to one of the charges before me, being Charge 3, the charge of incest.
85 The effect of that scheme has been discussed in a number of cases including in the case of Brown[9]. The period of 10 years is specified as the 'standard sentence' for the crime of incest. That period 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, without regard to purely personal matters. See ss5A(1)(b) and 5A(3)(a) of the Sentencing Act 1991.
[9]Brown v the Queen [2019] VSCA 286 (‘Brown’)
86 What is plain from the Act itself and from the many decisions interpreting those provisions since that case of Brown, is that the standard sentence is only one of a number of matters that I am required to take into account. See s5B(3)(a) and (b). Where it applies, as it does here to Charge 3, I must take it into account as one of the factors. The scheme was not however intended to interfere with the intuitive or instinctive synthesis that is very much at the heart of sentencing in this State, nor was it in any way countenancing two-stage sentencing processes. That style of sentencing is entirely prohibited.
87 It does not have any primacy over other factors which must be taken into account. The standard sentence scheme introduces an additional factor in the form of this legislative guidepost.
88 The standard sentence does not represent a starting point from which the sentence should be fashioned. I do not start at that point and then work my way either up or down from the standard sentence figure. There is no starting point.
89 Nor does the scheme otherwise affect the matters that the court must take into account. It does not change the requirement to, or the means and manner of assessing the seriousness of the offence.
Current Sentencing Practice
90 The standard sentence scheme does, however, impact upon the ability to take into account sentencing practices from cases dealt with where the scheme did not apply. Where it applies, the scheme sets up a 'clean slate', if you will, in relation to current sentencing practices. That is to say, I must only take into account current sentencing practices in relation to cases where the scheme applied to those past sentences. It is for that reason that there are so few sentencing decisions provided to me.
91 I can have regard to past sentencing practices predating the scheme for all the other charges before me as they are not covered by the standard sentence scheme.
92 So this scheme applies only to the crime of incest and in a way it is almost academic, in this sense. That is because reliance on current sentencing practices for the crime of incest, as disclosed by past sentences predating that scheme, would have itself been very much limited by virtue of the strong observations made in the cases of Dalgleish[10].
[10]DPP v Dalgleish (a pseudonym) [2016] VSCA 148, [2017] HCA 41 and [2017] VSCA 360
93 The principles which govern sentencing for crimes against children are very firmly established in many cases which pre-dated the operation of the scheme.
94 The crime of incest has always been viewed very seriously by the courts. In the decision of RBN v The Queen the President of the Court of Appeal stated:
'This court has often said that incest is a crime of great seriousness. It is an appalling crime involving the worst kind of breach of trust as between parent and child, and it is notorious that it causes long-term damage to the child victims whom it is the parent's first obligation to protect.'[11]
[11] [2011] VSCA 261 at [13]
95 Many cases from our Court of Appeal re-state and clarify those same principles. There was a very clear pronouncement from the Court of Appeal in the case of Dalgleish[12] that I have mentioned. So too the view of the High Court in that same case[13] when it went to the High Court and also on the remitted hearing back in the Court of Appeal[14]. That series of decisions spelt out in some detail the seriousness of the offence and the many reasons why that was so.
[12]DPP v Dalgleish (a pseudonym) [2016] VSCA 148
[13] [2017] HCA 41
[14] [2017] VSCA 360
96 The Court of Appeal dealt with the misconception that they said had sprung up as to crimes of incest not really being crimes of violence.
97 As was acknowledged by your counsel, sexual penetration of a child is by its very nature an act of violence.
98 The Court of Appeal in Dalgleish[15] concluded that current sentencing practices did not reflect the objective gravity of the offending or the moral culpability of the offender. That court spoke of the recurring themes in cases involving an offender with ongoing parental responsibilities towards a child under 18. The recurrent features, they said, being extreme invasion of the victim’s person, exploitation of a vulnerable child, violation of societal norms, long-term and severe impact, serious breaches of trust and the undermining of familial roots of society. They said features are common in incest occurring across the range of seriousness. The Court of Appeal went on to say in that case that the factors distinguishing worst case offending from mid-range offending was the nature and the extent of the offending conduct, its frequency and duration and the circumstances in which it occurs.
[15] Ibid
99 The Court of Appeal concluded that the sentences imposed in the past devalued the objective gravity of the offence as informed by the egregious breaches of trust and the consequences for victims.
100 I am dealing with one offence of incest and it is covered by the standard sentence scheme. So those inadequate past sentencing practices in existence prior to the scheme coming into operation are not to be taken into account by me. Statements of principle, of course, are in a different position. I can and I do have regard to them, whether they are provided before or after the commencement of the standard sentencing scheme or before or after the case of Dalgleish.
101 I have looked at the cases to which I was referred by both parties. Ms Fox referred me to two decisions at first instance, so decisions of two of my brother judges, Judge Lacava and Judge O’Connell. Ms Fox was not suggesting that those matters were on all fours, there were some similarities. There were also some differences. The Crown had prepared a table of cases involving sentences post-dating the standard sentence scheme, and equally clearly upon reading those matters, there were differences ‘all over the shop’, differences in offence detail and the personal features of the offender for that matter.
102 This process of looking at other cases and trying to plot the similarities and differences is over-valued, in my judgment. It is quite fraught. Even if one could find an identical or near identical matter, the sentence imposed would not stand as some precedent to be applied unless it could somehow be distinguished from the present case. A sentence is not a precedent. The sentence imposed is not the only sentence open. There is a range of available sentences open to a court, not just a single sentence. Another judge might have imposed a longer, or for that matter, a shorter sentence and not been in any way in error.
103 One can almost never find a case on all fours in terms of the offending, and then of course there is the issue of the personal circumstances of the offender and the impact upon the victim. There are always differences. The matters in mitigation and in aggravation are almost always individual. For instance here one feature of the incest was the fact that your victim had an intellectual disability. How is that to be measured up against a case involving a younger victim without a disability.
104 I note that a large number of the decisions referred to involved sentences following on from a guilty plea. There were only three that did not, including the two sentences Ms Fox referred to. A guilty plea in this sort of matter is highly rewarded, and for good reason.
105 In relation to the incest and the sexual assaults, you have none of the very sizeable benefits that accrue to a person who has pleaded guilty. You, unlike many of the cases to which I have been referred, have no remorse at all.
106 Statistical material is itself inherently limited. It can never greatly assist a court in the individual sentencing task.
107 I have looked at the Sentencing Advisory Council online resource relating to both the incest with a stepchild and the sexual assaults of a child aged 16 or 17 under care, supervision or authority. The formal sentencing snapshot for incest (No. 284) is derived from data much of which would not relate to sentencing under the new scheme. That scheme only came into force for offences committed after 1 February 2018. The online repository that I have referred to though is in a better position. Though it covers the period 1 July 2017 to 30 June 2022, and obviously a decent portion of the overall data would deal with matters not covered by the standard sentence scheme, one of the tables set out online provides a breakdown of those cases in the relevant period where sentences were imposed that were covered by the standard sentence scheme. I have had regard to that table. There are only 13 such offences.
108 In any event, as I have said, statistics are never going to dictate my task. They provide none of the detail of the offence or the offender. None of the matters in mitigation or aggravation are truly disclosed. I am exercising a sentencing discretion in relation to your crimes, not operating as a mathematician or a statistician. What has happened in other cases or as disclosed in the data by way of trend will not provide the answer to my sentencing task.
Gravity of offences
109 I am required to consider the gravity of the offences before the court. Ms Fox used adjectives to describe where the various offences fell on the spectrum of offence seriousness. I am not being critical of her for doing so and there is the encouragement to use this sort of language especially in relation to the standard sentence scheme where a notional mid-range standard sentence objectively viewed is specified in the Act. She argues that the incest fell just below the mid-range, viewed objectively. She made submissions as to where the other crimes sat on the spectrum of offence seriousness.
110 As I said in the course of the plea, there is a real danger when counsel or a judge for that matter, descend to describe whether an offence is a serious example of a crime, or where adjectives are employed to try and plot it onto the spectrum of offence seriousness. These things, I am sure, can be so easily misunderstood by those who watch on. Incest is after all an inherently serious crime when it is committed by a stepfather upon a child. Sexual assault of a child aged 16 or 17 under the care, supervision or authority is no minor offence.
111 Your counsel was not suggesting otherwise but was simply endeavouring to assist the court in making judgements as to the relative gravity of these offences. So it was she addressed me as to the absence of a range of features of aggravation that sometimes do exist. See Paragraph 3 of the outline. So the absence of, for instance, risk of disease or pregnancy, the offending not being accompanied by overt physical or verbal violence, the acts being generally of short duration and there being no direct threats to ensure silence. Also that for the incest, the child was not of very tender years. While I accept that these features of aggravation do not exist here, that is not a matter in mitigation in this case.
112 The breach of trust is inbuilt into the crime of incest. It is a given, it is always there and I must not doubly count it. It is why the crime is so seriously viewed and commands a 25-year maximum prison term. The breach of trust exists in relation to the other sexual assaults but in a very different way. There can be a very large range of relationships that might provide care, supervision or authority over a 16 or 17-year-old child and invoke these provisions. Yes, anyone in such a relationship should not transgress and when they do they are breaching their obligations to that child, and probably to others, arising from that relationship. Here though, this was your stepchild. That stands as a serious aspect of the various sexual assault charges that I am dealing with, as opposed to the incest where the relationship is built into the charge. Your stepchild, and one with an intellectual disability, this is the victim that you chose to offend against in the family home whilst others were present within. You told her to be quiet during the act the subject of Charge 5. Charge 2 involved skin on skin contact in the genital area as the lead-in to the charge of incest. Such a charge of sexual assault will never relate to penetrative acts. Your counsel upon reflecting on these various issues conceded that this was a serious example of that crime of sexual assault of a 16 or 17-year-old child under care, supervision or authority. She argued that Charges 4 and 5 were less serious and the plea indictment charge less serious still than many instances of that style of offending owing to the lack of graphic or explicit images or statements.
113 As to the incest I am dealing with, it was a relatively brief digital penetration.
114 All these offences were very brazen. They all occurred when other people were present in the house.
115 You were not in any way disinhibited or acting in a state of compromised judgement. You knew exactly what you were doing and that it was wrong. Your conduct was highly culpable.
116 I should for completeness say that I had in the course of preparing my sentence considered whether there might be some increased culpability if you held an awareness or belief that your victim had previously been offended against by another. There are references to that issue in the video audio recorded evidence and also in your police interview at one point. The matter had not been raised on the plea and I was loathe to make any finding as to a matter of aggravation without giving your counsel and the prosecutor the chance to be heard and to make submissions if needs be. Accordingly, I forwarded an email seeking assistance and I received back replies from each party. Each for varying reasons submitted that I could not take this into account as a feature of aggravation or as in any way elevating your culpability. I do accept that that is the position. Your counsel focused on the uncharged nature of the acts, rising no higher than an allegation against another and one where leave had been sought to cross-examine in this area and had been refused. That misunderstood, to a degree, as far as I can see, the issue, for I was not concerned with the fact of past abuse but rather with your state of mind as to the status of the victim. That might arise even if there had not been any past abuse. I accept though that the Crown's submission made good sense. I advised the parties that I would act on the joint view that I could not find that feature of aggravation present and that I would put that issue aside, and I have. There has been some discussion earlier this morning on this topic and I have marked the email chain as Exhibit G on the plea.
117 I accept that the Commonwealth offending was less serious than might sometimes be seen and that the communications, though aberrant, were not of a graphic nature or containing explicit images or words for that matter. Bear in mind though, this offence relates to the causing of offence. It is a general offence and ought not be confused with other offences within the Criminal Code targeting child sexual abuse material being sent by way of a carriage service where explicit images are the norm.
118 What it all amounts to is this: one can often enough envisage a worse case of any crime coming before the courts, including crimes of incest or sexual assault of a child under care, supervision or authority or use of a carriage service to cause offence.
119 Just a cursory examination of the Judicial College of Victoria table of cases will disclose that there are cases where there has been offending spanning many years with multiple pregnancies and all manner of features of aggravation, including substantial violence over and above the violence constituted by the actual penetration. There might be filming or other acts that are designed to humiliate and to degrade. There can be ‘in company’ offending. Sometimes there can be victims who are infants.
120 There is always a danger in trying to rank offences by applying an adjective to describe them; low level, mid-level high level. They can mean different things to different people. It is a practice that has been disapproved by the Court of Appeal. See the case of Weybury.[16] However, I have to make an assessment as to the nature and the gravity of the offending. That is just the reality. I accept that the incest here does not fall at the highest level. It is plainly above low level as your counsel conceded. I believe it falls at about the mid-range viewed purely objectively.
[16]DPP v Weybury [2018] VSCA 120
121 The sexual assaults are less serious for a variety of reasons. They have a much lower maximum penalty for a start. Charge 2 must represent a serious example of that offence given the conduct and the relationship. Charges 4 and 5 are less serious, with in my view, Charge 4 being the least serious matter.
Serious Offender provisions
122 It is accepted that I will be sentencing you as a serious sexual offender by the time I come to pass sentences on Charges 4 and 5. By that point you will have qualified, as plainly a prison term is required on Charges 2 and 3. The plea indictment charge has no role to play in this at all. It is not a relevant offence.
123 Under the Serious Sexual Offender provisions, unless I otherwise direct, the sentences passed upon you from the third sentence on the trial indictment would be served cumulatively upon the earlier sentences imposed, and upon each other. See s6E of the Sentencing Act.
124 Additionally, for the sentences imposed from that point, I must regard the protection of the community as the principal sentencing purpose. To achieve that purpose, for those two charges where you fall to be sentenced as a serious sexual offender, the court does have the power to impose a disproportionate sentence. The prosecution did not submit that that power ought be exercised here and of course it will not be. I will not pass any disproportionate sentences in this case.
125 I cannot though just ignore these provisions. They exist for a reason. I must give some weight to the serious offender provisions. I must give some weight to s6E. It is clear though from the case law that I still must pay regard to the principles of totality of sentence. These principles, though modified, are still of importance here.
Totality
126 I have given consideration to the overall effect of the sentences imposed by me. I have engaged in a last look at the overall effect in endeavouring to avoid a sentence that might be crushing upon you and to ensure that the overall effect is consistent with your actual criminality. Your overall criminality is high in this case. There is no reduction at all in your moral culpability. Your counsel concedes that a substantial prison term is inevitable here given the nature of the offences on the trial indictment. She is correct.
127 There was some discussion on the plea as to the extent of cumulation or concurrency for that matter. Ms Fox argued that there should be substantial concurrency as between Charges 2 and 3 representing as they did a single episode. She argued that there should be concurrency for the other charges, Charges 4 and 5. I asked why that should be so given that they were different acts, each on different occasions and was met with the response that 'it was the same victim'. A victim being offended against repeatedly is not a sound basis for concurrency. Such concurrency as is provided for here arises by virtue of the need to take into account the principle of totality.
128 Quite aside from that presumption in favour of cumulation set out in s6E, there would be the need to cumulate to some extent here for the sentences imposed on Charges 4 and 5. These were quite separate and distinct criminal acts. Those two acts did not occur in the same episode nor in the course of the episode relating to Charges 2 and 3. There is no temporal connection at all. No doubt each act would have contributed to the overall impact described by Claudia.
129 I will though otherwise order under s6E. If not, the third and fourth sentence imposed would cumulate upon the base sentence and upon each other. Totality, as I say, is still an important consideration. It is not ousted by these serious offender provisions and there must be some moderation effected by my 'otherwise ordering' here.
General
130 In sentencing you, there are a whole host of matters that I must take into account. Many of these were mentioned in the course of the plea. As I have a Commonwealth and a State sentencing exercise, these things are described differently in the applicable legislation; The Crimes Act 1914 for the plea indictment and the Sentencing Act for the State sentencing exercise. I am not going to be dancing between those two Acts and spelling out the different words and phraseology. Words may vary but the principles are very much the same. Prison is a disposition of last resort, proportionality is required.
131 I must consider the various sentencing purposes being denunciation, rehabilitation, the need for specific and general deterrence, community protection, and punishment for that matter.
132 There are many matters which must be taken into account by a court including the offence maximum penalties, the impact of an offence and the fact of the standard sentence, where that scheme applies, as it does for Charge 3. I have to pay regard to current sentencing practices, but in the modified fashion I have mentioned when dealing with the standard sentence offence.
133 You have some prospects of rehabilitation. I pay regard to them. I am a bit guarded about them for the reasons that I have set out, but I think they are fair.
134 I must punish you justly and proportionately. That is an important purpose of sentencing.
135 I must denounce your conduct. That, too, is important. I do denounce your conduct. You have committed serious crimes upon your stepdaughter. Those crimes have produced large impact upon her and her mother. How could they not.
136 I must consider the protection of the community from you, that is the principal purpose for those crimes where you are sentenced as a serious sexual offender. You obviously present some risk to the community. The extent of that risk is really very hard for me to gauge.
137 I must give weight to the principles of general and specific deterrence. Specific deterrence relates to the need to deter you. Whilst I accept that the sentence shortly to be imposed will to a degree deter you and that you will be much older upon your ultimate release, I must still give that purpose some weight. You must be deterred from ever committing such crimes as these again. Of course, if you had any sort of relevant criminal history, greater weight would be given to this purpose.
138 I mentioned also general deterrence. That relates to the need to deter others. This court must seek to deter others who might be minded to commit this style of offending. General deterrence looms large in this sort of case. It is a highly relevant purpose of sentencing for any of the trial indictment matters. These were four crimes all involving sexually targeting a child. That child was your stepchild.
139 This court must send a loud message to those who may think it open to sexually exploit children in any way. The Courts, by the sentences passed in these kinds of cases, strives to make very clear to others in the community that this sort of abhorrent conduct as yours will not be tolerated and will be met by stern punishment. We hope that other like-minded offenders might be deterred and not offend. So, as I say, general deterrence looms large in my sentencing task and that is accepted by Ms Fox.
140 Prison is a disposition of last resort. There is no doubt it is required here for the trial indictment matters, and having considered the matter, I take the view that a prison term is required also for the Commonwealth matter given the identity of the recipient of those communications and your relationship with her. I have mentioned the Federal sentencing regime. I have taken into account the matters I am required to take into account including the various matters set out in s16A(2) of the Act.
Sentence
141 I will now pass sentence. If you were here I would get you to stand up but because we are doing it online I will have you remain seated.
Forfeiture order
142 There is an application for a forfeiture order which is not opposed. I pronounce it then in an abbreviated fashion. I have signed that order.
143 I order pursuant to the provisions of s33 of the Confiscations Act that the property referred to in the schedule be forfeited to the Minister. I am satisfied of the criteria for the making of that order.
Trial Indictment
144 Let me turn firstly then to the trial indictment where I have those four charges of which you were found guilty.
145 On Charge 2, you are convicted and sentenced to two and a half years' imprisonment.
146 On Charge 3, the charge of incest, you are convicted and sentenced to nine years' imprisonment. That will be the base sentence.
147 From this point you fall to be sentenced as a serious sexual offender.
148 On Charge 4, you are convicted and sentenced to five months' imprisonment.
149 On Charge 5, you are convicted and sentenced to 10 months' imprisonment.
Plea Indictment
150 On the plea indictment, on the charge of use of a carriage service to cause offence, you are convicted and sentenced to a term of five months' imprisonment. I will come back in one moment to fix the commencement date for that matter.
Cumulation in relation to matters not covered by s6E
151 Let me now deal with the structure of the sentences imposed on the trial indictment. Firstly, I am going to direct as to the level of cumulation between Charges 2 and 3. The base sentence is the nine years that I have pronounced in relation to Charge 3.
152 I direct that six months of the sentence imposed on Charge 2 is to be served cumulatively upon the base and other part cumulative sentences. To that point then there is a sentence of nine and a half years.
Serious Sexual Offender for Charges 4 and 5. Extent of concurrency.
153 As I have sentenced you to terms of imprisonment on Charges 2 and 3, I have then sentenced you as a serious sexual offender in relation to Charges 4 and 5. As I mentioned a moment ago, unless I otherwise direct, those sentences would be served cumulatively upon each other and upon all other State sentences. Totality considerations must rein that in.
154 I make the following directions as to the extent of concurrency. That is the extent to which I otherwise direct or order under the provisions of s6E of the Sentencing Act. I direct then that;
·three months of the five month term imposed on Charge 4; and
·six months of the 10 month term imposed on Charge 5;
is to be served concurrently upon the base sentence imposed on Charge 3, and the partly cumulative portion of the sentence imposed on Charge 2, and upon each other.
155 So it is to this extent that I otherwise direct under the provisions of s6E. These orders for concurrency translate into an additional six months' cumulation upon the base sentence, Charge 3, and the part cumulative term imposed on Charge 2.
156 I appreciate this is not easy to follow because I have followed the wording of the legislative scheme in directing, firstly, the measure of cumulation, and thereafter the extent of concurrency. Those orders, both as to cumulation and then as to concurrency lead to a total effective sentence on the State matters of 10 years' imprisonment.
Federal commencement date
157 In the circumstances, I have taken the view that it is open to commence the Federal sentence on today’s date. That provides then for complete concurrency in relation to that matter, which really is a recognition of the substantial sentence you are liable to serve and the need to pay regard to the principles of totality.
Total Effective Sentence
158 So the total effective sentence is 10 years' imprisonment.
Non-Parole Period
159 I am required by law to fix a non-parole period. Unless it is in the interests of justice not to do so, I am required to fix a non-parole period of at least 60 per cent of the relevant term (See s11A). The relevant term is the total effective sentence (See s11A(5)(b)).
160 I do not believe it is in the interests of justice to fix a lesser ratio in this case. Your counsel was not suggesting that it was. She did not adhere to the submission that I should fix a non-parole period of precisely 60 per cent. There is no magic in that number. It is not put forward in the legislation as some recommended proportion. The legislation specifies a minimum ratio absent the interests of justice requiring a lesser one. One will apply, as I have, the usual principles in making a judgement about the appropriate non-parole period but in the knowledge that one cannot fall below 60 per cent unless the interests of justice require it.
161 Whether you are admitted to parole or not will be a matter entirely in the hands of the Adult Parole Board. I am prohibited from considering that possibility.
162 I fix a period of seven years during which you will not be eligible for release on parole.
Section 18 pre-sentence detention
163 You have already spent 101 days in custody by way of pre-sentence detention. I order pursuant to the provisions of s18 of the Sentencing Act that that period is to be reckoned as already served by way of pre-sentence detention. That declaration will be entered into the records of the court.
Serious Sexual Offender
164 You have been sentenced as a serious sexual offender in relation to Charges 4 and 5. That fact is also to be noted in the records of the court.
Section 17A
165 In the Federal sentencing exercise as in the State exercise, prison is a disposition of last resort. I believe prison was warranted for Charge 1 on the plea indictment and that no other option was open, and my reasons will explain why that is so. I treat this as satisfying the requirements of s17A of the Crimes Act.
6AAA
166 Had you pleaded not guilty and been found guilty by a jury of that Federal matter, I would have imposed a more sizable sentence. I would have sentenced you to 10 months' imprisonment on that matter and that declaration is to be noted in the records of the court.
167 There are just a couple of final matters and then the task will be finished.
Sex Offender Registration Act 2004
168 You have been sentenced by me, Mr Morgan, in relation to what are described in the Sex Offender Registration Act as one Class 1 and two Class 2 offences. I note that Charges 2 and 3 occurred on the same day and hence they are not separately counted.
169 It follows that you must comply with your reporting and other obligations under the Sex Offender Registration Act for the remainder of your life.
170 I am going to have handed to you in a moment a document that explains your obligations under the Act. You will need to acquaint yourself with it in due course, but I am simply at this stage having it provided to you for you to sign, acknowledging receipt of the explanations. This will signify that you have received these explanations as to your responsibilities under that Act.
171 The Sex Offender Registration Act imposes a number of conditions upon you, including impediments to future employment in a variety of areas, not that this is likely to be an issue for you. There are, however, some meaningful impediments to your future contact with children. You must familiarise yourself with those matters, as any breach of the Act, or your reporting obligations under the Act, is itself a very serious criminal offence and one punishable by a term of imprisonment.
172 Ms Fox, you have seen these things before. It would be easier if he was here physically in court. I am asking him to sign a form simply acknowledging receipt of the explanation of his obligations. I am not suggesting he is going to sit there now and read this. It is a very lengthy document. It will take significant time for him to do it. You understand I am simply asking him to sign to acknowledge receipt -he is hearing me say this to you. Do you need to speak to your client at all about this or not.
173 MS FOX: No, I don't think so, Your Honour, I will be having a conference obviously with Mr Morgan - - -
174 HIS HONOUR: Of course.
175 MS FOX: Either today or Monday but I am certainly satisfied that the - the signature is just required to identify that he's received the document.
176 HIS HONOUR: Traditionally, we don't put our signatures on documents we haven't read but he's acknowledging just the receipt of what's behind it. That's what it amounts to.
177 MS FOX: Yes, and perhaps just if Mr Morgan has any concerns about that he can certainly raise them at the end with me.
178 HIS HONOUR: Yes, all right. So, Mr Morgan, I believe there's a document – I wonder if the notice can be - - -
179 OFFENDER: Yes, Your Honour - - -
180 HIS HONOUR: If that notice can be handed to Mr Morgan and he can sign the – it's on the last page, I believe – if that could be signed by him and then if it can be witnessed by the Corrections officer, please. Yes, all right, thanks very much. So, Mr Morgan has signed that. That document has had my signature attached to it as well. So let me just see what else I have to deal with. Yes, one final matter.
Standard Sentence Statement
181 I am required to make a statement pursuant to ss5B(4) and (5) of the Sentencing Act. Section 5B(4) of the Act requires that a court sentencing an offender for a standard sentence offence state its reasons for imposing that sentence. Section 5B(5) requires me to refer to the standard sentence for the offence of incest and explain how the sentences I have imposed on you relate to the standard sentences.
182 I am required to identify the facts, matters and circumstances which bear upon the judgment I have reached as to the appropriate sentence.
183 I believe my lengthy reasons to this point will surely explain the reasons why the sentence imposed in relation to the offence covered by the standard sentence scheme is lower than the standard sentence specified. As serious as the offending was, of course there were some matters in mitigation, and I was dealing with a 57-year-old man with no prior criminal history whatsoever.
184 By the process of instinctive or intuitive synthesis, I have arrived at what I regard as the appropriate individual sentence, taking into account all the matters I am required to take into account, including the existence of that standard sentence scheme. It is, as I have said, but one of many factors to be taken into account.
185 Let me just see if there is anything I have overlooked. Are there any other matters that I need to deal with, Mr Batten or Ms Fox? Yes, all right.
186 I know it's difficult when I move between base sentence and cumulation and then the extent of concurrency, to be sitting there making a note of that, but you have made a note of that, you understand the extent of concurrency. I am hoping that my mathematics is accurate. There's no issue in terms of that?
187 MS FOX: No, that certainly reflects my understanding, Your Honour.
188 HIS HONOUR: Yes, that was my intended outcome. All right, that completes the matter. So Mr Morgan, you heard, Ms Fox is obviously going to be in touch with you to – she will organise some sort of Zoom link to discuss these matters with you. I think she might be in another trial at the moment, it may not happen today, I don't know whether it will be today or some other time but it won't be in the too distant future. She will be in touch with you to discuss what has occurred here today and your right in relation to what's occurred in this case. So that completes the matter then. So I will disconnect the link to Mr Morgan then. Thank you.
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