Director of Public Prosecutions v Morse (a pseudonym)
[2021] VCC 1053
•30 July 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL MORSE (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE GEORGIOU |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 6 & 28 May 2021 |
DATE OF SENTENCE: | 30 July 2021 |
CASE MAY BE CITED AS: | DPP v Morse (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1053 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sexual penetration of a child under 16 under care, supervision or authority – indecent act with a child under 16 – serious offending against a young child– significant power imbalance – conduct pre-meditated and manipulative - conduct involved grooming – no mitigation of moral culpability – 17 year delay between offending and sentencing – deep and lasting impact on victim – late plea – some remorse – poor state of physical health – very good prospects of rehabilitation
Legislation Cited: ss 45(1), 47(1) Crimes Act 1958 as amended
Cases Cited: The Queen v Bradey [2009] VSCA 169; R v MWH [2001] VSCA 196; Stalio v The Queen [2012] VSCA 120
Sentence: Total effective sentence of imprisonment of two years and five months with a non-parole period of 15 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S Holmes (plea) Ms Worrell (sentence) | Solicitor for the Office of Public Prosecutions |
For the Accused | Ms A Beech (plea) Mr Finch (sentence) | Armstrong Legal |
HIS HONOUR:
1Daniel Morse[1] you have pleaded guilty to a charge of sexual penetration of a child under the age of 16 and a charge of committing an indecent act with a child under the age of 16.
[1] A pseudonym.
2The offences occurred on the same day between 1 May 2004 and 31 December 2004.
3It was not disputed, and I find, that Mila Anthony[2], the victim of your offending, at the time the sexual penetration occurred, was aged between 10 and 16 years and was under your care, supervision or authority. Accordingly, the maximum penalty for Charge 1 is one of 15 years' imprisonment. The maximum penalty for Charge 2 is 10 years' imprisonment.
[2] A pseudonym.
4The circumstances of your offending are set out in the prosecution opening summary which was tendered and marked Exhibit P1. The matters contained in that summary were not disputed by your counsel, Ms Beech. I will summarise the more relevant parts of that opening.
Circumstances of offending.
5Ms Anthony was aged between 11 and 12 years at the time you offended against her.
6Her parents separated in 1999. She lived primarily with her mother and older brother.
7You came to know the victim's mother, Ms Donaghy[3], when you were engaged to provide advice about alternative energy options for a house she was building. About six to 12 months after meeting Ms Donaghy, you and she commenced a relationship. This relationship was disclosed to her children in 2003 when the victim was in Year 5 at primary school. After the relationship was disclosed you began to stay overnight at the victim's home approximately two to three nights per week.
[3] A pseudonym.
8During the second half of the following year, when Ms Anthony was in Year 6, she was being home-schooled by her mother. During that time she often accompanied you when you visited worksites. Sometimes the victim's mother went on those trips but on other occasions it was just you and the victim.
9The opening asserts that you began to groom the victim and her mother to enable your sexual abuse of the victim in the following ways:
(i) You introduced Ms Anthony and her mother to 'Wicca' magic. You told her you were a warlock and her mother a witch, which meant also that she was a witch. You spoke to Ms Anthony about magic and in your conversations you created a fantasy world with her,
(ii) You gradually increased the physical intimacy between you and Ms Anthony. When you stayed overnight you suggested to her mother that you would take over putting Ms Anthony to bed. At this time Ms Anthony was about 11 years of age. You would go into her bedroom and close the door. Initially you just lay with her under the bed covers. After a period of time you began to touch her. At first you touched her over the top of her clothes. You then started touching her under her clothes on her stomach, back and legs. Eventually, you were touching her over the top of her underpants around her genital area. You also increasingly talked about magic while you were putting her to bed,
(iii) Your relationship with Ms Anthony was physical in other ways. She would often sit on your knee. She felt that it was a 'secret' to be sitting on your knee,
(iv) You normalised nudity with both Ms Anthony and her mother. You told her mother that being naked was a good thing and that cultures where people are naked are very healthy. Her mother went along with your suggestion and so it was not unusual for you and Ms Anthony to be naked in front of each other. You, together with Ms Anthony’s mother, watched her try on her first bra,
(v) On one occasion you took Ms Anthony to a worksite. You were alone with her and took photographs of her semi-naked and completely naked, and
(xi) On another occasion you were in the shower and Ms Anthony was also in the bathroom. You purported to give her an 'anatomy lesson' by showing her your penis and testicles. Her brother came into the room and saw what you were doing. He immediately left. Ms Anthony felt that you both had been caught 'doing something' and felt embarrassed. You later told her mother that you had been giving the victim an anatomy lesson when her brother walked in on you. Her mother told you that was not appropriate, and you should stop that conduct.
10You are not charged in relation to any of the above matters, which were put before me to demonstrate how it was that you groomed the Ms Anthony and to provide the context in which your offending occurred.
11Between May and December 2004 you were providing professional services to a secondary college regarding issues they were experiencing at their Mallacoota campus. You attended the campus on a number of occasions.
12On one occasion you took Ms Anthony with you and you both stayed overnight in one of the college's cabins. In the evening you and Ms Anthony showered together. After the shower,
Ms Anthony sat naked in front of a fan heater in the lounge room. You were also in the lounge room and you started talking to her about magic.13When Ms Anthony went to bed, you got into bed with her. You were both naked. You had brought lubricant with you on the trip and whilst lying in bed you put some lubricant on your fingers and then began to touch her vagina. You penetrated the external lips of her vagina and also touched her inner vaginal lips. You did this for several minutes. This is the act of sexual penetration relevant to Charge 1 on the indictment.
14You then told Ms Anthony that it was her turn to touch you. You put lubricant on your penis and showed her how to rub it. She complied with your request and rubbed your penis up and down. She felt uncomfortable and stopped touching your penis after a while. This conduct forms the basis of Charge 2 - committing an indecent act with a child under 16. You became annoyed with Ms Anthony because she had stopped rubbing your penis. You said to her that you had done something nice for her so she can do something nice for you. Ms Anthony then left the room but eventually returned so she could go to sleep. It is not alleged that anything further of a sexual nature occurred.
15Following these incidents, Ms Anthony felt uncomfortable around you and tried to avoid you. You told her mother that while you were at Mallacoota with her daughter, only one towel was provided so you got the victim to run around the cabin naked to dry herself. You also stated that you lay down with the victim to tell her a story and, as you were very tired, you fell asleep. You said that whilst asleep, you reached across and put Ms Anthony’s hand near your penis and as soon as that happened you woke. You said you must have thought, in your half sleep, you were lying next to Ms Donaghy but when you realised that it was not her, you quickly stopped.
16Ms Anthony’s brother spoke to their mother about his concerns regarding your relationship with his sister. Following that conversation, Ms Donaghy confronted you about your inappropriate conduct towards her daughter. She told you she had to keep you away from her daughter and so ended her relationship with you.
17In 2009 Ms Donaghy again confronted you. You told her that she knew everything that had happened and that if she reported anything 'they' would come and take her children from her.
18Ms Anthony first disclosed your offending to a friend. She told her mother when she was 17 years of age. She also told her brother of your offending in about 2011 or 2012. In September 2017 Ms Anthony attended the Sale police station to report the offending.
19You were arrested on 8 January 2018. You were interviewed by police and whilst you answered some questions, you answered 'no comment' to the allegations put to you. You did not make any admissions to your offending.
20You indicated an intention to plead guilty on 12 February 2021. This was after pre-trial argument had commenced before me and prior to my delivering rulings on the pre-trial issues. You were arraigned on 15 February 2021 which was when your trial was listed to begin. You pleaded guilty to the two charges.
Victim Impact Statement
21A victim impact statement was tendered by Ms Holmes, who appeared on behalf of the Director of Public Prosecutions.
22Ms Anthony is suffering Post Traumatic Stress Disorder and experiences symptoms of anxiety and depression. She has been on anti-depressants since mid-2016. She has fantasies of harming herself and suicidal thoughts.
23The psychological impact of your offending has also resulted in her quitting several jobs because she struggles with anxiety.
24Ms Anthony stated that as the date of your trial approached, her anxiety became intolerable and on medical advice she took time off from work. She eventually left that job because of her anxiety.
25Ms Anthony anxiety has also impacted on her social life. She has difficulty forming new relationships. Your conduct also resulted in a breakdown in the relationship between her and her mother, whom she has not seen since 2014.
26It is clear from Ms Anthony’s impact statement, to which I have referred in part only, that your offending has had a deep and lasting impact on her.
Background and personal circumstances
27You were born in Melbourne in 1955 and are 66 years of age. Your mother was a computer programmer who worked developing computer programs for the TAB. Your father was a police officer. He resigned as a police officer when aged 55 but continued to work as a reservist. Both your parents are now deceased.
28You have an older sister.
29You instructed Ms Beech that your father was austere, and your mother very much involved with her work. Your grandparents were more involved in your care and lived in a bungalow at the back of your house. You had a close relationship with your grandmother in particular. Apart from you feeling isolated from your parents, there were no other issues within the family.
30You attended Strathmore Secondary College completing Year 11. You then found work in the public service, initially with the Department of Veterans Affairs and then the Department of Housing. Your parents, it was put, did not support your continued education. In any event, you became disillusioned with work in the public service and so you left. You then had a number of jobs before enrolling in and completing an associate diploma in applied electronics at RMIT. You studied on a part time basis eventually obtaining your diploma.
This Diploma is, I was told, the equivalent of a Bachelor of Electrical Engineering.31After completing your tertiary studies you started an alternative energy consulting business. You ran that business for approximately 30 years. In 2006 you joined an electronics manufacturing firm that designed solar equipment. You then joined another company designing and installing electrical equipment. You continued working for that company to the present time. You became national technical manager and your role was to design power systems for everything from individual houses to small towns.
32You first married when you were 18. That marriage lasted approximately two years. You had several other relationships before meeting your wife, Audrey[4], with whom you have been married for more than 20 years. It was during your marriage that you had the relationship with Ms Anthony’s mother. Your wife only became aware of this shortly before the committal hearing in February 2019. Despite that affair and your offending, your wife remains supportive of you.
[4] A pseudonym.
33You do not have any previous convictions, nor do you have any subsequent convictions.
34Two character references were tendered on your behalf, one from your sister and the other from your wife. They are both aware of your offending and consider it to be completely out of character. You have discussed your offending with them, and they speak of your devastation and deep regret for your conduct.
Submissions
35Ms Beech made a number of submissions in mitigation of sentence.
36She relied upon your pleas of guilty which, despite their lateness, were said to have substantial utilitarian value as Ms Anthony has been spared the ordeal of giving evidence and being cross-examined before a jury.
37Ms Beech also relied upon your pleas of guilty as evidence of your remorse. Further evidence of your remorse, she submitted, is in the character references of your wife and your sister. It was also submitted that your remorse is evident from what you told Dr Barth when he assessed you.
38Ms Beech next relied upon the fact there has been significant delay between the offending and your ultimate sentencing. She pointed to the fact there is no suggestion of any offending either prior to the charged incidents nor in the years since the offending occurred. It was submitted that delay is relevant to my assessment of your prospects of rehabilitation, the need for protection of the community and specific deterrence.
39Ms Beech also relied upon your otherwise good character and submitted, as the character references attest, you have been a valued and contributing member of the community both prior to and after the offending. She also pointed to the fact that you are now a 66 year-old man who is to be sentenced for the first time.
40Reliance was also placed on the reports of Dr Barth, Dr Doslo and Dr Amin, which I will consider in more detail shortly.
41Ms Beech submitted you have been greatly affected by the charges and they have had a significant negative impact upon you. This, it was put, is relevant to specific deterrence and punishment you have already suffered.
42It was put that your intense guilt and emotional reaction to your offending will mean that imprisonment is likely to weigh more heavily upon you then an offender who is not suffering from the same level of emotional reaction.
43Ms Beech conceded that punishment, denunciation and general deterrence are highly relevant factors. These considerations, she submitted, are not moderated by the level of your emotional distress.
44With respect to rehabilitation, Ms Beech submitted that your prospects are excellent. She relied, in particular, on the following matters:
(1) you have no relevant prior convictions;
(2) you have no subsequent convictions;
(3) you have sought treatment in the past when necessary;
(4) you have a strong work history; and
(5) you are well supported by friends and family members.
45It was submitted that in the circumstances of your case, particularly having regard to your prospects for rehabilitation, and notwithstanding the assessment of you presenting a low to moderate risk, protection of the community assumes less significance.
46I was referred to a number of comparative cases by Ms Beech. I have had regard to each of those cases in my consideration of sentencing practice.
47I was also referred to Sentencing Snapshot No.88 which set out a number of sentencing statistics for the offence of sexual penetration of a child between
10 and 16 years for the period 2003-2004 to 2007-2008.48Ms Beech's ultimate sentencing submission was that whilst a term of imprisonment is conceded, it ought to be imposed in the form of a partially suspended sentence or in combination with a community correction order.
49Ms Holmes submitted that the only appropriate sentence is one that involves a term of immediate imprisonment. Ms Holmes submitted I should impose a head sentence with a non-parole period. This submission is based on the objective seriousness of your offending, the need for general deterrence and denunciation, as well as a consideration of comparative cases involving similar conduct.
50Factors that go to the seriousness of your offending, it was submitted, include the maximum penalty of 15 years' imprisonment on Charge 1, and 10 years' imprisonment on Charge 2; the fact that you were in a position of trust; and that there was a considerable age difference between you and Ms Anthony.
You were aged about 49 years and Ms Anthony between 11 and 12.51Furthermore, it was submitted that your offending was premeditated and involved the grooming of the victim and her mother as I earlier described.
Ms Holmes also relied on the significant impact your offending has had on
Ms Anthony as evidenced in her impact statement.52Ms Holmes questioned whether your plea was indicative of genuine remorse. She noted that Dr Barth concluded you had a grossly distorted concept of appropriate interpersonal boundaries, your pleas of guilty were entered late and there was a contested committal hearing at which Ms Anthony was
cross-examined.53Ms Holmes submitted that your prior good character should be given less weight than in sentencing for other offences.
54Ms Holmes also referred to the comparative cases provided by your counsel and submitted they support the prosecution submission that a combination sentence is outside the appropriate range of sentences for your offending.
Reports
55A number of reports were tendered on your behalf and I shall refer to them in brief.
56Exhibit D1 is a psychological report of Dr Matthew Barth dated 22 April 2021. You were assessed by him on 15 and 31 March this year.
57Dr Barth considered you were guarded in the assessment process.
You provided relatively limited information about your interpersonal and sexual experiences and your motivations for your offending. Your responses to psychological testing indicated a moderate level of distortion. This however, which Dr Barth put down to poor self-awareness, did not invalidate your test results.58You told Dr Barth that the dynamics in Ms Donaghy’s home were 'very alternative' and 'liberal'. You said nudity was a common occurrence around the home and that you, Ms Donaghy and the children would often be fully naked around each other. I pause to note you did not tell Dr Barth that it was you who persuaded Ms Donaghy to accept nudity around the home.
59You also stated you had difficulty managing appropriate boundaries with the victim, reporting that the victim regularly approached you to ask questions about sex and that you felt confused as to how you should handle the situation.
You said this culminated in the incident in the bathroom where you showed the victim your testicles. This too would appear to be a distortion of the true situation.60You reported long standing issues with alcohol use. Alcohol, you said, assisted with feelings of insecurity in social situations. You also used alcohol to relieve stress from work and when experiencing conflict in your relationships.
You continued to experience significant difficulties managing your alcohol use at the time of your psychological assessments.61When you saw Dr Barth, you described an intense emotional reaction to being charged. You felt overwhelmed and deeply upset about the charges and this resulted in depressed moods and acute anxiety. You saw a psychologist for approximately four sessions but did not find that helpful. You were also prescribed Serapax by your general practitioner. Your moods have continued to fluctuate in connection with the stress of your legal situation.
62You told Dr Barth 'I am very remorseful for the impact on Mila. I was always fond of her and she has been hurt, I never wanted that. She was just a child'.
63Dr Barth considered that your reaction to your legal predicament has been intense. You describe typical emotional and behavioural symptoms of depression and anxiety. Central to your symptoms are your feelings of guilt for your offending. You feel that you have brought disgrace upon yourself and expect that others will respond to you with a combination of contempt and ostracism. Your internal dialogue is quite punitive. You reported noteworthy anxiety-related symptoms. You ruminate about the charges.
Dr Barth considers your symptoms are reactive in nature. You meet the criteria for 'adjustment disorder-with mixed anxiety and depressed mood'. There are no issues with your cognitive functioning and you are considered to be of above average intelligence.64In Dr Barth's opinion, your understanding of the noxious impact of sexual abuse on children remains superficial. You repeatedly expressed to him your astonishment that the complainant had reportedly approached you to discuss sexual concepts and this is likely to have contributed, at least in part, to your perception that she was more ready for sexual activity at her given age than was accurate. Your perceptions of the victim, in Dr Barth's opinion, were likely to have been grossly inappropriate and dysfunctional. He is of the view that specialist sex offender treatment is required to address the problematic features of your sexual adjustment and to assist you to gain insight into your behaviour. Dr Barth is also of the view that you suffer an alcohol use disorder within the moderate range requiring treatment and counselling.
65Dr Barth considers that your overall risk of sexual recidivism falls in the 'low-moderate risk' category which could be reduced with the completion of a specialist sex offender treatment program.
66Dr Barth concludes as follows:
(1) your current legal situation has precipitated a particularly intense bout of reactive depression and anxiety.
(2) Your symptoms are sufficient to warrant the diagnosis of an adjustment disorder, with mixed anxiety and depressed mood. There is an appreciable risk that your mood could deteriorate under circumstances of further stress and there is a clear need for ongoing professional treatment.
(3) It is likely that you viewed the victim as being more sexually and emotionally mature than is accurate. Moreover you had a grossly distorted concept of appropriate interpersonal boundaries.
(4) You present a low to moderate risk of sexual recidivism which could be reduced by appropriate specialist treatment together with supervision and support.
(5) Whilst you expressed guilt for your offending, your inability to discuss it in any meaningful way and your poor insight into your behaviour remain a concern. It is imperative that you complete a specialist sex offender treatment program. You also clearly require treatment to address alcohol abuse issues and your current emotional distress.
67Exhibit D2 is a report dated 29 April 2021 from your treating doctor, Slavko Doslo. In December 2017 you told Dr Doslo about the allegations but did not discuss the details. You were prescribed a short-term anxiolytic to help calm you down. In time, you were referred for psychological counselling to a
Ms Brown whom you saw on three occasions. You were also prescribed Serapax to help with your anxiety and depressed moods.68A report dated 14 May 2021 from cardiologist, Dr Joseph Amin, was also tendered on your behalf. The report confirms you suffer severe right coronary artery disease with a heavily calcified vessel for which treatment in the form of a complex angioplasty and a drug eluting stent was inserted. The usual protocol for the stent is for you to continue with the dual antiplatelet medication for 12 months.
69You are also on a battery of medication set out in Dr Amin's report. Although your counsel questioned whether such medication would be available for you if incarcerated, I have not received any further submissions which the parties were invited to file if there were any such issues in gaol.
70Dr Amin's report was brief, apart from saying you will need cardiac rehabilitation in the form of an outpatient exercise program, he did not comment on your prognosis, the urgency of such treatment, or how prison might impact on your physical health.
71An email from Ms Debra Coombes was filed with the Court, without objection, on the morning of the last plea hearing on 28 May 2021. It was tendered today and marked Exhibit P4. In her email, Ms Coombes advised that health service delivery within the Victorian Correctional system is based on the principle of community equivalence. A full range of medical services, she said, are available to prisoners. Tertiary services, such as those requiring specialist treatment or surgery, are available through St Vincent's Hospital. If they cannot be provided there, permission may be sought for treatment to occur at another facility.
72I am satisfied on the evidence before me that you will receive adequate health care in prison.
Sentencing Considerations
73As was properly conceded by your counsel, you engaged in serious offending against a young child. The maximum penalties prescribed for each offence show the seriousness with which the legislature views this offending.
74In my opinion, you exploited your position within the family unit to take advantage not just of Ms Anthony, but also of her mother. Your conduct involved grooming of both Ms Donaghy and Ms Anthony. You were able to gain Ms Donaghy’s trust to allow you to take her daughter on an overnight trip.
You abused that trust and offended.75Whilst Ms Anthony was under your care, supervision and authority, you committed the offences of sexual penetration and indecent act with her.
She was a very young child. You were some 37 years older than her.
There was a significant power imbalance between you. Your conduct was
pre-meditated and manipulative. You took lubricant with you for the purpose for which it was used. Perhaps out of a concern that Ms Anthony might tell her mother of your conduct, you sought to pre-empt that possibility by giving
Ms Donaghy a false account of what happened. This was highly manipulative behaviour. There is nothing that mitigates your moral culpability. You alone are responsible for what you did.76I have regard to the fact that there was no violence beyond that involved in the acts themselves, and whilst you tried to persuade Ms Anthony to continue masturbating you, you did not threaten her.
77In sentencing you on Charge 1, I am careful not to doubly punish you for your breach of trust. The aggravating feature of Ms Anthony then having been under your care, supervision and authority increases the maximum penalty from one of 10 years to one of 15 years. However, as was stated by Coghlan JA in The Queen v Bradey,[5] the trust is owed much more widely than to the primary victim. Furthermore, there is no similar statutory aggravating feature in
Charge 2.[5] [2009] VSCA 169 [38]
78You have pleaded guilty to the charges and you are entitled to the utilitarian benefits that follow from those pleas. The victim and others have been spared the trauma of having to give evidence before a jury. The Court and community have been spared the time and cost of a trial. However, your plea came late and so the moderation in penalty will not be as it would otherwise have been had your pleas been entered at an earlier time. Time was allocated for your trial. Until you pleaded guilty, Ms Anthony lived with the anxiety of having to again give evidence of what occurred. As stated, she was required to give evidence at the committal hearing, as were her mother and brother.
79The impact of your offending upon her has been significant. This is very clear from her impact statement. Courts have long recognised the insidious effects of sexual abuse of young children, particularly when perpetrated by adults in positions of trust. That Ms Anthony has suffered and continues to suffer long after the offending is hardly surprising.
80Your contesting of the charges, up until the time you pleaded guilty, does not speak of any remorse for your conduct or the impact that conduct has had upon your victim or her family. However, I am prepared to find some remorse on your part commencing with your pleas of guilty and expressed in your discussions with Dr Barth, your wife and sister.
81You saw Dr Barth after your pleas of guilty were entered. You expressed your remorse for what you had done to Ms Anthony. You acknowledged the disgrace you have brought upon yourself and, as reported by Dr Barth, your internal dialogue is punitive. This suggests a realisation by you, at least since the pleas were first indicated, of your wrongdoing.
82I accept the diagnosis of 'adjustment disorder-with mixed anxiety and depressed mood'. I accept also that your response to the charges is one of intense emotional distress. These factors will in all probability mean that the sentence of imprisonment I impose will weigh more heavily upon you than an offender not suffering from similar mental health issues. On the evidence, I am not able to find, however, that there is a serious risk of imprisonment having a significant adverse effect upon your mental health.
83I accept also that your poor state of physical health, particularly your heart condition, will mean that the sentence of imprisonment will be more onerous on you than a prisoner not suffering such ill health.
84The sentence to be imposed will be moderated having regard to added burden of imprisonment because of your Adjustment Disorder and your poor physical health.
85I also have regard to the additional burden of imprisonment because of the COVID-19 pandemic and the consequential restrictions operating in the prison system. These include a 14-day quarantine period, restricted visits from friends and family and, at times, lockdowns.
86You are now 66 years, and this will be your first experience of gaol. You have never before been in trouble with the law and you have not been in any trouble since the commission of these offences. You are, in my opinion, entitled to call on your previous good character in mitigation of penalty.
87I find that you have very good prospects of rehabilitation. I do not accept they are excellent given the contents of Dr Barth's report and his finding there is a low to moderate risk of you re-offending and that you are in need of specialist sex offender treatment. However, there are a number of significant protective factors that suggest the need for specific deterrence and protection of the community assume less significance. Included in those are your age, poor health, support of your wife and sister and what I consider to be the significant deterrent effect of prison.
88Your counsel properly relied on delay as a mitigating factor. Ms Beech referred to the following passage from the judgment of Callaway JA in R v MWH where, at paragraph 18, his Honour stated –
It is the effects of delay that are important for sentencing. As in R v Law, the prisoner's age at the time of sentencing may mean that he is less likely to re-offend. His health or life expectancy may make service of a sentence of imprisonment more onerous than usual. There may be considerations of fairness, especially where the delay is attributable to the prosecution or there has been a significant period of uncertainty or curtailment of liberty after the offences came to light. There may be practical considerations that require a marked degree of leniency to be extended. The foregoing is by no means an exhaustive list and it omits the most important potential effect of delay, namely rehabilitation. The person standing for sentence may have been rehabilitated in one or more ways. He may have given up a form of substance abuse that contributed to the offending. He may have reordered his life. He may have changed morally so that, quite apart from being older, he would not be likely to re-offend. He may have suffered genuine remorse in the sense of repentance, not just sorrow at being caught and fear of punishment. So far as possible, a lengthy process of rehabilitation should not be halted or endangered by the sentence imposed.[6]
[6] [2001] VSCA 196
89The delay in MWH was much greater. However, the delay between your offending and sentencing is some 17 years, which is significant. You are considerably older and in poorer health. You have also lived with the prospect of charges since your police interview in January 2018, and with the charges since July 2018. I have regard to the stress and anxiety to you resulting from those charges and the subsequent delay. Importantly, you have not
re-offended since the commission of these offences, a matter of considerable importance to the question of your rehabilitation. In my opinion, the delay in this case, coupled with there being no further offending, is a significant mitigating consideration.90I was referred to a number of sentencing decisions for similar offending.
Ms Beech submitted the correct approach to a consideration of current sentencing practice is set out in Stalio v The Queen[7] and that it may also be relevant to consider sentencing practice as at the date of the offence when sentencing for that offence occurs many years later. I accept that submission. I have had regard to the cases to which I was referred, the sentencing statistics in Snapshot No.88 and other cases referred to in the Judicial College of Victoria's Sentencing Manual. The sentencing snapshot, as was correctly submitted, provides only limited assistance. I do note from that snapshot that a sentence of imprisonment is most likely for persons over the age of 40. Current sentencing practice is one of a number of factors to which I must have regard. However, each sentence to be imposed requires an individualistic approach having regard to the particular circumstances of your offending as well as your personal circumstances.[7] [2012] VSCA 120
91Considerations of general deterrence and denunciation are of paramount importance in cases involving sexual offences against children. They are abhorrent crimes and persons tempted to engage in such conduct should understand they risk stern punishment if they do. Given my assessment of your prospects of rehabilitation, I agree there is less need to emphasis specific deterrence and protection of the community from you in the sentence to be imposed.
Sentence
92I do not consider it appropriate in the circumstances of this case to impose a combination gaol and community corrections order sentence. Your offending is too serious for such a sentence. The maximum gaol term of 12 months in a combination sentence would not be appropriate in all the circumstances.
I agree with the learned prosecutor's submission that the most appropriate sentence is one of a head sentence with a non-parole period.93On Charge 1 you are convicted and sentenced to a term of imprisonment of two years and three months' imprisonment.
94On Charge 2 you are convicted and sentenced to a term of imprisonment of eight months.
95Having regard to the fact that these two offences occurred during the one episode and having regard also to the principle of totality, I direct that two months of the sentence imposed on Charge 2 be served cumulatively on the sentence imposed on Charge 1. This makes a total effective sentence of two years and five months.
96I consider that the minimum period justice requires to be served, having regard to all the circumstances, is one of 15 months' imprisonment.
97Had it not been for your pleas of guilty, the sentence I would otherwise have imposed is one of three years and 24 months.
98Pursuant to the provisions Sex Offenders Registration Act, I find that you are registrable offender, and your reporting period is for the remainder of your life.
99You will be handed some documents shortly that set out your responsibilities under the Sex Offenders Registration Act. I ask that you sign the acknowledgement confirming receipt of those documents.
100Your solicitor will no doubt explain to you, Mr Morse, your obligations under the Sex Offender Registration Act and the penalties that may be imposed if you fail to comply with those obligations. The document I am about to hand to you sets out what those obligations are.
101Mr Finch, do you wish to assist your client to review that document?
102MR FINCH: Yes, if I could approach, Your Honour.
103HIS HONOUR: Certainly. Mr Finch, you will ensure that Mr Morse understands his obligations.
104MR FINCH: Yes, Your Honour.
105HIS HONOUR: Ms Worrell, I do not think there are any ancillary matters that have been sought?
106MS WORRELL: There are not, Your Honour, no.
107HIS HONOUR: No. Mr Finch, are there any custody management issues?
108MR FINCH: Just the issues raised in Your Honour's sentence in terms of his listed medications and his diagnosis from Mr Barth.
109HIS HONOUR: All right, thank you. If you would please both convey the court's appreciation to Ms Beech and Ms Holmes for their assistance in this matter.
110MS WORRELL: Yes, Your Honour.
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