Director of Public Prosecutions v Murray (a pseudonym)

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

THOMAS CASEY MURRAY (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE TINNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	15 May 2024
DATE OF SENTENCE:	21 May 2024
CASE MAY BE CITED AS:	DPP v Murray (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2024] VCC 730

REASONS FOR SENTENCE
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Catchwords: Trial indictment with 4 charges; sexual assault of a child aged under 16 x 2. Two charges of sexual penetration of a stepchild (incest). Guilty verdict to all. 39 years of age at time of offending, 44 years old at sentence. No criminal history at all. Serious Offender regime; Sex Offender Registration Act.
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Triandos	Office of Public Prosecutions
For the Accused	Mr D. Rofe	James Dowsley & Associates

HIS HONOUR:

1Thomas Murray[1], following a relatively brief trial, on 19 February of this year, you were found guilty by a jury of four sexual offences committed upon a child. There were two charges of sexual assault of a child under 16 and two charges of sexual penetration of that same child. Those sexual penetration charges related to the daughter of your then domestic partner, hence your stepchild. For ease of reference, I will refer to them as incest charges in my reasons, as I did in the course of the plea and, for that matter, as both counsel did in addressing me.
[1] A pseudonym
2These four offences occurred on the one occasion, and the incest involved two forms of penetrative conduct as against that 11-year-old stepchild.
3I remanded you into custody after taking that verdict, and you have remained there since.
4You are now 44 years of age and have no prior or subsequent criminal convictions or findings against you at all.
5The maximum penalties are correctly set out in the prosecution submissions filed on the plea. Those maximums are 25 years' imprisonment for the incest charges and 10 years' imprisonment for the sexual assault of a child charges.
6I 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, as it was accepted by your counsel that a prison term is completely unavoidable here. That concession was obviously correct.
7The standard sentence scheme set out within the Sentencing Act does not apply to my task. There is the understandable lack of precision as to precisely when the acts took place, and hence a between-dates range was correctly specified by the prosecution in the indictment which had been filed. The standard sentence scheme, which fixes a 10-year standard sentence for Charges 2 and 4, applies only to crimes occurring after 1 February 2018. The transitional provisions spell out that that scheme does not apply in these circumstances where there is a between-dates range and the earlier date precedes 1 February 2018, as it does here.
8Let me turn, then, to the sentencing facts in this case.
Facts

9I have heard all the evidence in this case. So, of course, did the jury. On a guilty plea, these days, there is usually a written statement as to the facts. Most often it is an agreed statement placed before the court. That obviously does not exist here, as a trial was conducted and witnesses were called. Sometimes, after a trial, it is not that easy to determine the factual basis of sentencing, especially where there might be mixed verdicts. A judge is always required to sentence consistently with the jury verdicts that have been returned. However, the factual basis of sentencing is not at all difficult to determine in this case, and that was, on the whole, conceded to be the position by Mr Rofe, who made it plain that he accepted that the jury must have accepted the evidence of the complainant beyond reasonable doubt.
10When I raised this issue at the outset of the plea hearing, a matter I thought to be completely uncontroversial given the way the trial had proceeded and the absence of any written submission raising any issue on this topic, I confess I was a bit taken aback by what then followed. Mr Rofe saw fit to address me as to what he said was the potential duplicity in relation to Charge 1 on the indictment. The particulars to Charge 1 spelt out 'touching the vagina and/or area around the vagina' of the child. He was troubled by the inclusion of 'and/or'.
11Those particulars have sat on that indictment for as long as it has been filed in this court. It was filed in February of 2023. No issue was taken with the charge prior to arraignment or empanelment a year later. In fact, the particular was put by my associate in the course of the arraignment process. No issue was taken at any stage of the trial, including at the end of the Crown case or in the course of Jury Directions Act discussions that we had at the end of all the evidence. No issue has been taken since verdict, including in the written defence outline filed on the plea. Mr Rofe told me that the idea only really came to him the night before the plea. Well, that in combination with the large period of time he has been engaged in this matter might have given him the hint that there really was nothing in the point and that he should put it aside.
12There is no issue of duplicity at all. The form of particular was employed to spell out the touching in that area which preceded the act of penetration. That was always understood to be the case. See paragraph 14 of the amended summary of prosecution opening for trial.
13Kristen Wells[2], for that is the name of the child, described in her video and audio recorded evidence (VARE) the massage you gave her with the hand going down into her pants. She described the hand touching her vagina and then going inside, so touching around the vagina prior to the penetrative act. She described in her sworn evidence that the touching of her vagina occurred and so too then the penetration of it.
[2] A pseudonym
14It was a strange and very much belated submission, one that really should not have been made, and one which I have no hesitation at all in rejecting.
15There is no difficulty interpreting these verdicts. They can mean only one thing: the jury was satisfied beyond reasonable doubt that you touched the young girl sexually in relation to Charges 1 and 3 and that you digitally penetrated her vagina in relation to Charge 2 and penetrated her anus with your tongue in relation to Charge 4.
16The jury verdicts were of course based on the assessment that they made of all of the evidence placed before them in the course of the trial. The only evidence as to what took place within that bedroom was from your direct victim, Kristen. You had made a no comment interview, as was your right, and did not give evidence at trial, as again was your right. Kristen had made the video-audio recorded statement back in March 2022, and she swore to the truth of that account when she was called as a witness at trial. Her account was challenged in cross-examination.
17Plainly, the jury was satisfied of her account beyond reasonable doubt. They accepted her as a reliable and truthful witness when she gave her account of what you had done to her in the bedroom of the family home. I am not surprised. She was a most impressive witness.
18Of course, there were other witnesses called as to the surrounding circumstances within the house, such as, for instance, the make-up of the house and the way in which massages were given and received. There was evidence of Kristen's complaints made to some of her schoolfriends and to her sisters, and at one point to her mother, as well as a very much edited or sanitised account of the circumstances in which Kristen first spoke to the police. That editing was required to remove the prejudicial sting to you of the true circumstances in which Kristen first spoke to the police. The police attendance at the family home had nothing to do with Kristen and was in fact in response to a phone call from Kristen's mother, your ex-wife Sonia Carr[3], who says she caught you sexually assaulting a former babysitter in the family home on 14 March 2022. Witnessing that alleged act, she rang the police, and when police attended, at some point, Kristen described what you had done to her some years before.
[3] A pseudonym
19A trial relating to that alleged rape of the former babysitter waits in the wings. I make no judgment at all as to that alleged conduct. It is alleged; nothing has been proven against you.
20Positive evidence of good character was led in this trial from three witnesses, notwithstanding that pending matter and the account potentially available to the Crown as to other acts of bad character. The Crown had, however, indicated they would not seek to rebut that good character evidence if it was led in the manner in which it ultimately was led, which of course was their right. I was asked to give a good character direction by Mr Rofe and was required to do so in those circumstances, as though I was aware of that other allegation, that was all it was, and the Crown had not sought to rebut the evidence of good character. See the case of Newman.[4] At that next trial, you would lead evidence of good character at your own peril.
[4]DPP v Newman [2015] VSCA 25.
21I believe the factual basis of sentencing is adequately summarised in the amended summary of prosecution opening for trial dated 8 February 2024. That summary was based on the account that Kristen had given in the VARE statement, and when she gave sworn evidence live before the jury in this trial, she adopted the truth of that account. I will mention a few additional matters from the trial transcript.
22By way, then, of only very brief summary, Kristen Wells was born on [redacted]. She is now 17, but she was 11 at the time of these events. She was the youngest of four children with an older brother, Ivan[5], and older sisters, Tasha[6] and Joanna[7]. You had met Kristen's mother, Sonia, in 2013, and a relationship developed. You moved into her home in September 2014 (Trial Transcript p114) and by November of that same year, it would seem you had invested in a business together. Other businesses were purchased, and together, as I understand it, you opened a number of stores.
[5] A pseudonym
[6] A pseudonym
[7] A pseudonym
23It was, in a way, a blending of two families, as you had sons of your own who, though they lived with their mother, spent time with you and your new family. For instance, the jury was told that you all went for a cruise together as a family. You described yourselves as the 'Brady Bunch' (see the trial transcript at 116). Clearly, strong bonds were formed, and a very sad theme in the impact material is the loss of these family bonds.
24Ultimately, you went on to marry Sonia, and it is apparent that the acts had preceded the wedding, though by how long is hard to know.
25You would often enough engage in massages of family members, though there was no secret about that fact. They took place out in the family room with many present. You moved the massages off into the bedroom and focused your time on Kristen.
26These four acts I am dealing with took place on one such occasion when you were in Kristen's room, just the two of you. She had a sore leg, and you were purporting to massage her as she lay on her bed, on her stomach. Your hands went higher and higher on her legs, and you then pulled down her underwear and touched the outside of her vagina (Charge 1) before penetrating her vagina with your finger or fingers (Charge 2). She froze. She did not know what to do. Your penetrative conduct hurt her. You removed your fingers and then licked around her anus (Charge 3) before inserting your tongue into her anus (Charge 4).
27She described in the VARE and in her evidence before the jury how uncomfortable she felt about these acts occurring. It was ‘weird', she said. As to the vaginal penetration, she said in her evidence it was awful, so uncomfortable, and it hurt so much that she closed her eyes and wished it was not happening (see VARE Q153).
28In the aftermath, she did not know what to do; she was only in Year 5 and 11 years of age or thereabouts. She was a child. You were her stepfather and had been at that stage for some years. She was mortified. She was also deeply conflicted, as she knew that her mother loved you, and not just that, but that you and her mother were actually going to get married. She thought it would be her fault if you could not be together. As she put it, she did not want to be a bad person and ruin her own mother's happiness. She said she felt like an awful person, saying in her evidence, 'He's my stepdad and he's touching me'. She felt safe when she was at her father's home, but of course, she did not want to lose her mother. She did not want to tell her grandfather because she feared the same outcome might arise; that is, that she would be taken away from her mother.
29There was evidence of complaint made to some schoolfriends as well as to her sisters and, to some extent, to her mother, though Kristen never descended to the full detail of what happened with any of these people.
30As I have said, there was the necessarily sanitized version of the circumstances in which Kristen spoke to the police and disclosed that about four years previously, you had sexually assaulted her.
31She attended the police station that night and provided the VARE statement.
32There was no issue taken at trial as to your being her stepfather, knowing that you were, or as to her age. Nor as to the fact that what she was describing was sexual touching in relation to Charges 1 and 3 and penetrative conduct in relation to Charges 2 and 4. The issue in the trial was the happening of the various acts, not how they would be characterised if the jury was satisfied beyond reasonable doubt they took place.
33Well, the jury was satisfied beyond reasonable doubt that each of these acts happened.
34Each constitute a serious crime for which I now must pass sentence.
35So much, then, for my summary of the offending. Far greater detail can be found in the trial evidence, so for instance the VARE of not just Kristen but her sisters and the school friends, and the evidence given by those witnesses when called at the trial as well as the other witnesses where evidence was given without the use of any prerecording or alternative procedure. I see no need to go further into the facts, as there really is no controversy as to them.
Impact
36I turn now, then, to the impact of your crimes.
37There are a number of impact statements in this case, including one from Kristen, your direct victim, and one from her mother, Sonia Carr. There are also victim impact statements from her sisters, Tasha and Joanna, as well as one from her brother, Ivan. Sonia read her impact statement out aloud the other day. Kristen's was read out aloud by the informant. Joanna's was read aloud by the prosecutor, and Tasha and Ivan's impact statements were filed and relied upon but not read out aloud. I have read them myself. Indeed, I have read all the impact statements since the plea. In two cases, there was some inadmissible material which was not read aloud. There was a line in Kristen's second paragraph referring to being targeted and four lines in the second paragraph of Joanna's impact statement. So the inadmissible portions, by agreement, were not read aloud, which 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 any regard to those inadmissible portions. Though not raised by the parties, I raised the issue myself of the use of the word 'monster' as was applied in some of the impact statements and also the use of the phrase 'preying on our lives' in Sonia Carr's statement. Though I could understand why they would use such expressions, I said I would not have regard to that sort of material, and I will not.
38In Ms Carr's statement, there was reference to an incident that took place, she says, at court on 17 February (in fact, I think it was Friday 16 February) where there allegedly was close contact between you and Kristen downstairs at the security screening. I was informed of that on Monday 19 February and the likelihood that there would be an application to revoke bail. I was told that the informant wished to obtain the CCTV footage, watch that, and having done those things, I was told that an application was actually going to proceed to revoke your bail. That was interrupted, though, by the jury pressing their buzzer to announce their verdict. I then took their verdicts. I saw no need then to view the tapes, and I do not have regard to any improper incident taking place on that day. There was also reference in Jo's statement just above the inadmissible portion to some further detail I thought I should alert the parties to where she says she was made to feel violated, and there was mention of your taking advantage of the vulnerabilities of the ‘girls’. Of course, I must put from my mind any aspect of the impact materials hinting at or referencing any other criminality or indecency in relation to the other girls. I am not dealing with any other crimes. I am dealing with the crimes on this indictment, for which I must pass sentence.
39I suppose I could say in a sentence or two that the impact has been profound and that I take it into account and then move on, dealing with the many matters raised on your behalf – dealing with your background, your good character – but you see, this is not all about you. I am sentencing you, but I am sentencing you for serious crimes, and the impact of those crimes is a significant matter which, as far as I am concerned, is deserving of far more than just a footnote in my reasons.
40I will not set all this material out in my reasons. It would be a forlorn task to do that, and it would really serve no useful purpose. As I have said, I have read the impact statements again since the plea and will have regard to them. Again, I make plain I will only act on the admissible portions.
41There is nothing surprising at all about the level of impact to either your direct victim, Kristen, or to her mother or siblings. Incest is a corrosive crime. It is known to be greatly damaging to the family unit. It fractures family relationships. Trust is lost. Guilt is felt, sometimes even a sense of shame, and the family unit is of course never the same. There are many and varied conflicting emotions. All these things are spoken of in the impact statements placed before me; for instance, the loss of a father figure or partner, the loss of your sons from the blended family. There is loss and damage everywhere one looks, but of course the greatest damage is to Kristen.
42The impacts have been far-reaching for her. Your offending has caused deep and lasting impact upon her. She describes a childhood marred by your crimes; nightmares and sleepless nights and tears, the wish that it did not happen and the desire to have the simple childhood of others around her. But of course, it cannot be removed or wished away. It happened. She was 11. She is now 17, and her life has been blighted by you, by your acts in a room and a house where she should have been safe and protected by you. She felt ashamed and mortified by your actions. You were the trusted adult. She was only a child. You breached this trusted relationship, not her. The only shame should be yours, the adult perpetrator – and of course, you have none.

43She kept it to it to herself and spoke in her VARE and her evidence about the reasons for not making full disclosure. This violation has been with her ever since it took place. She describes confusion, shame, anger, anxiety and feeling powerless. You were her mother's partner and then her mother's husband, and she was loyal to her mother to a fault, not wanting to destroy her mother's happiness or risk the fracture of this family, her family. What a burden for a young girl to bear. She suffered not just on the night in question but ever since. It has impacted on every facet of her life. She says in her statement it will affect her for the rest of her life, and I do not doubt it. It will never be forgotten, and it will no doubt have a role to play in shaping her attitude to things in the future, to things such as trust and intimacy, to parenthood and to admitting people into her life and space. She will not even know now, today, how these things will play out in the years to come, but no doubt she will forge ahead in life, as she must.
44School was affected. She has been at the pointy end of school since the disclosure was made and is in VCE Year 12 this year. She speaks of the impact upon her day-to-day life, the impact on school and the impact of the court case. She feels a sense of violation and disgust at what you did to her. She feels freed up by the verdict and the end of the court process, which is at least something. There is a sense of hope here, as of course there must be for her.
45Her mother, Sonia Carr, has been very deeply affected. She describes a deep sense of guilt as to having brought you into this house. It is a decision that of course cannot be undone and one which has unleashed all the ramifications she spells out in her impact statement. She has a sense of shame and embarrassment that you were admitted into this house, a place that otherwise was safe. She feels that she has failed to protect her daughter. There is guilt for not protecting Kristen, or saying the right things to her, or not taking the right action, or not asking the right questions or ensuring that her daughter felt safe. Then it all came out, and the family was fractured: loved stepchildren who are no longer part of the family, disentangling the joint financial affairs and the shared businesses, the trauma of seeing her own daughter, Kristen, in pain.
46She describes the panic attacks she has had and despair that she has felt as a mother. There has been the inability to actually sit down as a family and talk about what had happened, and that was because all the family were witnesses in these proceedings. Of course, they needed to talk and to share, but they could not. She describes a loss of trust in males, and she is describes a doubt in her own judgment. She sees the world through a very different lens now, and she has fears of not being able to keep her grandchildren safe, such is the level of failure she feels in relation to her daughter. She really should not be so hard on herself. I repeat, you committed these crimes. She did not facilitate them in any way. She trusted you. You were her husband or partner. You were the person spoken of so glowingly by all these character referees. You have, by your crimes against her daughter, your stepdaughter, sullied the entire relationship with Sonia Carr as she looks back over the years, but of course her greatest concern is for Kristen and her future.
47There are similar themes of the fracture of the family to be found in the other impact statements, the devastating impact on the family unit as described by Joanna. She has felt sick to see her youngest sister so distressed. There is the loss of the stepbrothers, the court process and the difficulties of that process. She says there is light at the end of the tunnel, and there was, upon verdict, a sense of a weight lifting off, and that is a theme running through the statements. It has been a pretty long tunnel, measured against the length of Kristen's life. Tasha describes a sense of loss as well, the loss of a stepfather. You were part of her and her siblings' family, and then you are not because of your criminal acts. She describes feeling angry, sad, and she second-guesses herself. 'Who were you really?' she says. Home life has changed, court was stressful, and she will not forgive you for what you did to her sister. Ivan has also seen the devastating impact upon his youngest sister and the family as a unit. He too speaks of the loss of his stepbrothers. He misses them. He could not really ask friends home, for to do so would require some explanation of that missing stepfather.
48These are just some of the many sentiments set out within the impact materials. The impact here has been profound. These acts took place in Kristen's bedroom under the roof of the family home, acts by a trusted figure in her life.
49The impacts will be ever present in her life. Deep and profound and lasting impacts, and as I have said, she will not even know now what impacts will be felt as she journeys through life. She will remember your crimes always in the years to come.
50Now, I have set out some of the detail. With the exception of those inadmissible portions, I have regard to all the impact material placed before me. I do not act emotionally or let the impact of these crimes swamp the many other sentencing considerations which I am required to take into account in this case. I have to guard against that emotional response, and I do. But I am obliged to take into account the impact of your crimes. The impact of this offending has been and will continue to be profound.
51I take into account the impact of your crimes.
In Mitigation
52Mr Rofe conducted the plea in mitigation on your behalf. He had also conducted the trial.
53It must be said that the plea in mitigation had a few hiccups along the way. I have mentioned already the strange and belated submission as to duplicity relating to Charge 1 on the indictment, which I have rejected.
54I was not impressed by the way in which a large number of character references, some of them quite lengthy, streamed into my associate's email inbox on the morning of the plea, some of them only moments before I was to come onto the Bench – emails at 9:28, 9:30 and 9:41 as against a 10:00AM listing on 15 May that had been fixed since the verdict was delivered on 19 February. I had made it very clear on 19 February when the case was adjourned to the May plea date that the filing requirements under the Practice Note were to be complied with. That I expected materials to be filed well in advance of the plea date. They were not, and there was no reason why these documents, the character references, had not been filed. Many – in fact, most – of the references bore dates from months ago. No sensible explanation, or in fact any explanation at all, was provided as to why they came to me in this manner. The Practice Note with the amended section dealing with character references was operative from December of last year and requires the filing of character references at least seven days before the plea hearing, not just the five days applicable to submissions. I interpose the written submissions were also late filed. So too the expert report. At least, though, there was a reason for that. The expert report should have been filed at least 14 days before the hearing, but the consultation only took place on 8 May, and so of course it was impossible for the report to be filed within time, and I suppose until the report was received there were difficulties in preparing the written submissions, hence they were late as well.
55There was no real explanation as to why some of the character references were seemingly non-compliant with aspects of that amended portion of the Practice note dealing with character references and the expectation of the court as to what is to be included and not included in such references. It was unclear from a number of them the extent to which the author had any true knowledge or understanding of the details of the proven allegations, and Mr Rofe could cast no real light on that matter. Plainly, the two referees who had given evidence before me knew of the nature of these trial allegations, and they had each provided written character references as well.
56It also was unclear whether any or many of them had any understanding at all as to the existence of the outstanding allegations. Though those matters are outstanding, one would still hope that authors who are asked to write references as to a person's character have a decent understanding of the true lay of the land. Ultimately, though, I put that issue aside altogether.
57There was also the very obvious use of some form of template or draft or other person's version employed, for instance, by Gwen and Kyle Nelson[8]. That is plain when one examines the form of their letters and much of the identical wording within. I just do not know why that sort of thing occurs. It really should not. They are meant to be in the words of the author, not based on something someone else has said or written. It would appear that those referees have very little understanding, if any, of the nature of the matter before the court, based on their description in the reference where, despite the generic introduction as to a plea hearing and guilty finding, there was then reference to some issues causing you a lot of stress and the author not being aware why your work and personal life had taken a 'turn for the worse'.
[8] Pseudonyms
58What am I to make of a reference from Neal Guzman[9] which speaks of his understanding of the nature of the finding of guilt – he believes it to be 'child rape' – and his statement that, 'My good opinion of him has not and will not waver'? He, it seems, falls into that category of friends and family described by Ms Hicks[10] in her reference; that is, those who find the verdict 'hard to swallow'. Well, Mr Guzman was not in the bedroom at the house and nor was he in court to see and hear the evidence. The jury was in court and heard all that evidence. He concludes his reference by giving me, the sentencing judge, some guidance, saying, 'We are hoping to wake up from a bad dream but will settle for leniency'. Well, I will determine the appropriate sentences based on the proven allegations, taking into account the matters in mitigation and aggravation in this case.
[9] A pseudonym
[10] A pseudonym
59Maybe I was too prickly about some of these issues. I am not for one moment suggesting the Nelsons are in any way to be disbelieved because they have used some form of template or at the very least, have drawn phrases from whichever reference was written first. It seems likely they were describing the very same meeting where they were both present and probably neither thought anything was untoward in doing it in the way that they did. But what do they really know about even the broad nature of the allegation? It would seem, from the reference itself, virtually nothing.
60I am not saying there is anything sinister at play here, either in their references or any of the others.
61Some of the other references have the generic reference to a plea hearing without giving any sense at all as to what the author understands the plea relates to.
62Whatever concerns I held or expressed in relation to any of these matters has been swept away since the plea. I have read all the references in far more detail since the plea, a luxury which regrettably was not afforded to me on the day of the plea, given the way they were late filed.
63Having read them all far more carefully, I have no reason at all not to accept the references and the sworn character evidence given at trial as being the genuinely held view of the particular author or witness, based on their knowledge of you over the significant period of friendship or relationship as the case may be. I am not suggesting that any of the concerns I have expressed render the character evidence to be of no or even minimal value. Not for one moment. Maybe all that is being said is that people view the conduct as being out of character, and they are stating that strongly and that they will stand by you and that you have a lot of support. Well, all of that is clear enough. Nor am I suggesting there is any need for an author to be fully apprised of the full detail of the trial evidence. Of course, that is not necessary.
64But it really would be far wiser to actually have references which comply with the amended Practice Note and ones that do not seemingly challenge the verdict or betray a lack of knowledge as to what has been established against you and then file appropriate references in a timely manner.
65I should say, that though these things occurred in the early stages of the plea, it is obvious they have nothing to do with you. It is not your fault that the filing requirements in the Practice Note were not complied with, nor your or the character referees' fault if the form of the written reference had some issues. What does an author of one of these references know about the Practice Note? Nothing. All they are doing is seeking to speak honestly about what they know of you, and I will treat them in that fashion. That, of course, does not depend on them having any knowledge of the outstanding matter either.
66As to the late filing of material, that sort of thing happens often enough – far too often, actually. It grates, I growl, and I move on and do my job as a Judge. As I say, it is not your fault that character references, for whatever reason, came flooding in on the day of the plea and have some limitations, as was conceded by Mr Rofe. You have no control over that. You are in prison.
67It is not your fault that a quite strange argument as to duplicity in relation to Charge 1 was raised on the plea a year after the indictment was filed.
68I was critical of your counsel, not unduly so in my view, but of course that is where it stops. None of these things lie at your feet and you are not to be punished in any way for any failure, misjudgment or miscalculation as to the way the plea was presented. I put those matters behind me.
69By the way, I have no doubt Mr Rofe was doing his level best. He could only work with what he had to work with. It is not his fault that he did not have available the very many matters that often enough exist in mitigation in cases like these.
70As to what I make of the character evidence, well, that is a different issue all together, and I will turn to that when dealing with your prospects of rehabilitation and the risk of re-offence. I do not doubt that they are all genuine, but where do they actually take me on this plea?
71Back, then, to the plea.
72Mr Rofe relied upon a brief revised written outline of submissions dated 13 May 2024. There was a report from Dr Cunningham as well as a large bundle of course completion certificates. He relied upon that character evidence given at trial and those many written references that I have mentioned already.
73Mr Rofe relied upon the background detail set out in Dr Cunningham's report. There were of course also some glimpses of your background in the many references that I have mentioned, including your mother's and sister's references.
74In this manner, Mr Rofe placed before the court the essential detail as to your personal background, so things such as your family background and your educational, employment and relationship history. He focused on this being your first time in custody, the absence of any criminal history prior or subsequent, and he made some submissions as to your prospects of rehabilitation.
75He addressed the court as to the level of objective seriousness of the various offences as well as to the relevant sentencing purposes in play here.
76The written submissions went into some detail as to the absence of some other features of aggravation. See, for instance, paragraphs 8 and 9 of the outline (Exhibit 1). This was the theme very much at the forefront of the plea, and that sort of thing is really not a matter in mitigation at all. It is rather the absence of a feature of aggravation.
77The absence of some features of aggravation that can exist in the commission of a crime is really not the best way to assess the objective gravity of the actual crime that is before the court.
78He addressed me as to the need not to doubly count the breach of trust as an aggravating feature of the incest charges, as this was built into the incest charges by virtue of the requisite relationship and the 25-year maximum prison term provided for.
79He made some submissions as to the impact of the crimes not being an aggravating feature, as he submitted that what was contained within those impact statements was not over and above what is ordinarily expected in terms of impact to direct victims and family members. He was not challenging any aspect of the admissible impact materials. It is not a matter of it being an aggravating feature. The impact was the impact. The impact is before me and is not disputed, and I must take it into account in my sentencing task. That is, after all, the law. See s5(2)(daa) of the Sentencing Act 1991. That provision is not set out within the Act as some irrelevant or somehow neutral matter. It does not set out some curious exercise in determining impact which then leads nowhere in the sentencing task. The nature and degree of harm is, of course, highly relevant to determining the gravity of the offence before the court. There are some crimes where the impact is slight or even non-existent. Sometimes even with serious crimes, sexual or otherwise, the impact really cannot be accurately gauged, as there may be no impact materials or other information touching upon impact. That can be the position in sexual crimes, including crimes of incest, and whilst judicial notice might be taken of the damaging nature of the crime on a general level, even the presumption of harm, without the impact materials, there is a level of speculation as to the true, the actual, impact, and so a vacuum in the evidence. There is no vacuum here. Here, I have impact statements that spell out the profound impact in this case. I am required as a matter of law to take it into account, and I do.
80Mr Rofe made some submissions as to totality of sentence and levels of cumulation and concurrency.
81Late in the plea, after the various matters in aggravation absent from these crimes had been listed and after he made some submissions as to where these instances of incest and sexual assault of a child fell on the spectrum of offence seriousness, I asked Mr Rofe to detail the matters actually in mitigation here. Frankly, there was not much in mitigation in this case – and again, that is not a criticism in any way of Mr Rofe. It is just the fact. This case did not involve an early plea in the course of the global pandemic or one evidencing genuine remorse. There was no application of any of the principles from cases such as Bugmy[11], dealing with the mitigatory effect of a disadvantaged background, or Verdins[12], dealing with the impact upon the sentencing process of mental illnesses or psychological conditions existing at the time of offence or sentence or both. I was not dealing with the principles applying to youthful offenders from cases such as Mills. There, in fact, was no claim to any reduction in your moral culpability in any shape or form. There was no deficit in your capacity to understand how serious these crimes were when they were committed and no explanation of them.

[11]Bugmy v The Queen [2013] HCA 37 (“Bugmy”)
[12]R v Verdins [2007] VSCA 102 (“Verdins”)
82In answer to my question as to the mitigatory matters in existence, he relied chiefly on the following matters in mitigation:
·that you had not been sent to prison previously;
·that you had no prior or subsequent proven criminal record; and
·that you were a man of good character with good prospects of rehabilitation.

83Well, the connection between the three matters he listed is easy enough to see.
84The first two matters plainly were correct. You had not been sent to prison previously. You had no prior or subsequent proven criminal record. So too was it clear that you are a man of good character. Your prospects of rehabilitation, though, are far less clear to me, as I will explain in detail later in these reasons.
85Mr Rofe conceded that a prison term was required here and one obviously requiring the fixing of a non-parole period, and he made some submissions as to the appropriate ratio that the non-parole period should have to the head sentence.
Prosecution
86Mr Triandos, who prosecuted the trial, appeared on the plea. He relied upon some brief written submissions, which really were quite uncontroversial, so I shall not set them out. They are marked as Exhibit A on the plea.
87There was really very little contest between the parties in this case, though the prosecution did not accept your counsel's characterisation of where the offences sat on the spectrum of offence seriousness or the claim as to the level of culpability here.
88The prosecution argued that your moral culpability was high.
89The Director of Public Prosecutions of this State, through Mr Triandos, was calling for a head sentence and non-parole period, but of course your counsel had already correctly conceded that that outcome was the only outcome open to the court here.
90I will come back a bit later to consider the various submissions made by the parties. I am not bound by submissions as to sentence made by either side. I must exercise my own sentencing discretion here.
Background
91Let me turn firstly to your background. I will do so relatively briefly. Your counsel pointed to the background detail set out in the report of Dr Cunningham, and I see no need to set that all out. I will act on what has been placed before me. I have mentioned some additional material as to your background, which can be found in the written references and the character evidence given at trial for that matter.
92Briefly stated, then, you were born in May 1979, so you are 44 years of age, turning 45 in a short time. You were raised in Cockatoo by your parents. You have a younger brother and sister. You had a good upbringing with no abuse, but your father was diagnosed with a serious mental illness when you were about 12 years of age. He spent some time in psychiatric care. As your mother makes clear in her reference, that was, of course, quite disruptive. As I understand it, your parents are still both alive.
93You were educated to the end of Year 11 level, leaving in Year 12, as you did not much like school. You gained full time employment making pellets, and then worked in liquor sales and consultation for eight years. You worked as a plumber as well and then at Total Tools for about six years. This bring us to about the time, I believe, when you were in a relationship with Sonia and the two of you were involved in running some businesses at three shopping centres. You have not worked since arrest. You have no issues medically or with drugs of dependence. I am quoting from the report of Dr Cunningham, which concludes that you have no diagnosable mental illness.
94I have mentioned already there are no prior or subsequent convictions of any kind, though there is that outstanding rape trial waiting in the wings. I can have no regard to that matter, as it is outstanding, and in that sense – I think I have conveyed this already – it matters not one jot whether the character witnesses had knowledge of that allegation or not.
95It is not that unusual to have someone dealt with for these sorts of crimes who has no criminal history whatsoever, someone who is otherwise of good character, as you plainly are.
96The weight given to good character will vary and will depend on the nature of the charges, their level of seriousness and the particular weight to be given to the various purposes of sentencing. The weight of good character evidence can have a reduced significance where serious offences are often enough those committed by people who otherwise are of good character, such as these. Nonetheless, you are of course entitled to, and do, call in aid your past good character. I take that into account, as I must.
97It is very plain from those many references that you are far more than just the person who has committed the serious crimes that I must pass sentence in relation to. These references speak of your many qualities and strengths as a brother or father or son or cousin or friend, as someone who has been in the vicinity of children and trusted, all the things that these people know of your character over the many years they have known you. Whether they dispute or cannot believe the verdict or not, plainly they see this conduct as being out of character.
98I see no need to conduct an audit in these reasons of the various things contained within those references. As I said earlier, I have read them again far more carefully than I had the opportunity of reading them before coming onto the Bench for the plea, and I do not ignore any of them. I do accept they are genuine statements from people who know you, and that is in no way affected by whether they knew of the outstanding matter or not. No doubt each one of them would have sworn to the impossibility that one such as you could act as you did, and yet of course you did. They take me only so far, and they provide no insight into why you committed these serious crimes, your motivation and whether that warped mindset that must have existed on the day in question will persist into the future. I will not dwell further on those references. I take them into account.
99Returning, then, to your personal history, I understand you have had a number of relationships. The first produced your sons, who are now no longer boys. You had many short-term relationships then one longer-term relationship before the relationship with and marriage to Sonia Carr. That relationship ended in dramatic fashion on the day the police were called to the house in March 2022 in relation to that quite separate allegation.
100I understand that at that point you went to live with your brother.
101I have mentioned the report of Dr Cunningham, marked as Exhibit 2 in these proceedings. As to that report, there is really not much to it. It does not comment on the offences at all. He details the elevations on the histrionic personality pattern, with a proclivity that you have for attention seeking, but he says you have no personality disorder. He details the management of depression and anxiety both in custody and before you arrived there. There is a well-known Court of Appeal decision operative in this State, Verdins, which deals with the impact upon the sentencing process of mental illnesses or psychological conditions existing at the time of offence or sentence or both. I should say that is a gross simplification of that line of authority. No Verdins limb 5 argument as to increased custodial burden has been raised here. Indeed, it was explicitly disavowed, and correctly so, by Mr Rofe. In fact, Mr Rofe correctly conceded that none of the principles from that case were in any way enlivened here. Again, that concession was correctly made.
102Dr Cunningham makes statements as to your rehabilitative needs, and yet there was no risk assessment even attempted by him. I really do not know why. Perhaps it is explained by your denial of offending, but I must say I have seen risk assessments often enough carried out in such a setting as this. They were not carried out here, for if they were, they would be in the report. He does not provide any opinion as to the motivation for the offending or any explanation of it or your level of risk.
103The report is really relied upon, I suppose, as to the absence of features which might typically hold back or impede a person's rehabilitation, for instance, drug addiction or serious mental health issues. These things do not exist here, which of course is a positive, but of course as they do not exist, they cannot in any way explain the offending or even provide a context for the offending. There is no explanation for the offending, and nothing at all in your make-up in any way reducing your culpability for the offending or suggesting that there was any deficit in your understanding as to how serious these crimes were. There is no suggestion or hint of any disinhibition contributing to the conduct.
Remorse
104Let me deal with the aspect of remorse, and I will do so quickly, as your counsel was explicit in conceding that there was no remorse in this case. You ran a trial, as was your right, but having done so, there is no hint of remorse here. That is not a feature of aggravation. You are not to be punished for running a trial. It is just that by doing so, you now do not have at your disposal on a plea the very large discounts available to one who has pleaded guilty at an early stage and who is remorseful for their crimes. That sort of mitigatory consideration is worth a great deal indeed when dealing with an incest matter, and of course it does not exist in this case.
Rehabilitation
105I turn, then, to your prospects of rehabilitation. It is difficult to make judgments as to those prospects. I mentioned earlier that you have none of those issues that so often hold back the process of rehabilitation – things such as drug or alcohol issues or serious mental health issues, even mental illnesses, including intellectual disability contributing directly to the offending. Those things, where they exist, may even attract some mitigatory value by virtue of a reduction of culpability. But on the flip side of the coin, where they exist, they can increase future risk. We have no such issues here. There is no mental illness. There is no mitigatory cognitive deficit or distortion. I have no personality disorder. I have no issue of disinhibition brought about by drugs or alcohol that might provide context to the offending. I have no aspect of any reduction in your culpability.
106You are 44 years of age, and there are no prior criminal matters of any description nor any subsequent convictions or findings against you. There is the outstanding allegation, but that remains to be tested, so I cannot have any regard to that. You had a good family background and have had have a good employment record, obviously enough. You have much support from these many who speak of your qualities and impliedly, if not some of them very directly, the out-of-character nature of these acts. The level of support is obvious, and again, there are a large number of people present here today, as there was the other day. They speak of the person they know, and I have said more than once, that I accept those references and/or the character evidence given at trial as being the genuinely held views of those who know you. You are a person of good character. But what was in your mind causing you to act in such an obviously aberrant and serious criminal fashion? Who were you then? Who are you really?
107As a 39-year-old man – so not in the dim, distant past, but just a handful of years ago – you have committed these unmistakably serious crimes. I have said already you were a mature man with no cognitive deficits and with nothing in any way reducing your capacity to reason appropriately. There is no reduction in your culpability at all. You knew exactly what you were doing, and your moral culpability is high. I reject your counsel's submission on this topic. You had been living with this family, your new family, for a number of years. You knew Kristen's age. She was 11 – not just 11 but your stepchild, one whom you then sexually exploited in her bedroom in the family home on that night. Why?
108There is no sensible explanation of your conduct placed before me, and the fact that it only happened on this one occasion, as was put before me, is no explanation at all. There were four acts on that one occasion, all of them unmistakably serious crimes targeting an 11-year-old girl in that house, with others in the house. Her mother had already said goodnight to her on this night. See the VARE at Question 120.
109Unlike some other cases I have dealt with in recent times, here there is no risk assessment at all. You are not an elderly man falling to be sentenced for crimes occurring 30 or 40 years ago with nothing since and not many years of life lying ahead. Often enough, a more elderly offender might be assessed as having a low risk given the passage of time and the lack of any recurrence of offending over a number of decades and their advanced age and poor health and even the absence of access to children or opportunity to offend in the limited future that lies ahead post-release. Well, you are 44. One would expect from your past relationship history that upon your ultimate release, you will probably hope to forge intimate relationship in the future with women, and those women may have children or, for that matter, grandchildren. What is the risk?
110It is possible, I suppose, that the Sex Offenders Registration Act limitations and your reporting obligations under that Act for 15 years post-release may serve to reduce your future risk upon your ultimate release.
111I accept that the substantial sentence I will soon impose will have a role in deterring you. It is your first time in custody, and I do not ignore that fact. It will not be easy for you. You are doing courses and programs and intend to study, which of course is a good idea. The fact is it will be some years until you might be released back into the community. You will be a good deal older.
112It is possible that you may be required to do some sex offender program as a condition of being granted parole. You may well still deny the offences, and that can be very much problematic in terms of those programs. I really cannot make any judgments currently as to the benefits that may flow from those sorts of programs.
113What is there, then, before me to suggest that the aberrant sexual interest which obviously motivated this offending is somehow dormant or extinct? There is nothing in Dr Cunningham's report. As I have said, these were unmistakably serious criminal acts committed upon your stepdaughter. You knew that and went ahead even in the face of other people being in that house. What a risk you were taking. Why? What motivated you? Well, the character references do not assist me in that regard, nor the evidence from the three character witnesses that was led at trial. That evidence was led in disproof of these crimes having occurred, so as bearing upon the improbability of someone of that glowing character committing offences such as these.
114Well, you did commit them.
115As I say, I have not found it easy to reach views as to your prospects of rehabilitation or your risk of re-offence. There is a chasm between the evidence of good character and this conduct. This conduct was not just some minor slip-up.
116I am not able to find that your prospects are good. That would be to ignore the relative recency of, and the nature and gravity of, this abhorrent offending and the complete absence of any material explaining it or detailing the level of risk. I can only be relatively guarded at this point in time. There is a risk of
re-offence, though plainly not against this victim. I am prepared to accept that you have some prospects of rehabilitation. In fact, I am prepared to assess them as being fair or reasonable. Beyond that, though, it is hard for me to make any further determination.
Current Sentencing Practice
117I am required to take into account current sentencing practices. That is not a controlling factor.
118The crime of incest has always been viewed seriously by the courts.
119In the decision of RBN v The Queen, the President of the Court of Appeal stated the following:
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.[13]
[13] [2011] VSCA 261 at [13].

120Many cases from our Court of Appeal clarify those same principles. I could as easily select from any number of cases before or after the case I have cited.
121The sentencing practices for the crime of incest have undergone significant changes in this State owing to the strong observations made in the case of Dalgliesh. I say 'the case', but in fact, there were three cases. There was an authoritative pronouncement from the Court of Appeal in the original appeal decision of Dalgliesh[14] which altered our approach to sentencing in this area. We then had the decision of the High Court in that same case[15] remitting the matter then back to the Court of Appeal to be appropriately dealt with and then that remitted hearing in the Court of Appeal.[16] So there was that sequence of events. That series of decisions spelt out in some detail the seriousness of the offence and the many reasons for that.
[14]DPP v Dalgliesh (a pseudonym) [2016] VSCA 148.
[15] [2017] HCA 41.
[16] [2017] VSCA 360.
122I mentioned this in the course of the plea, but the Court of Appeal in their first judgment dealt with the misconception that they said had seemingly arisen over time as to crimes of incest not really being crimes of violence.
123Plainly, sexual penetration of a child is by its very nature an act of violence. That much was conceded by Mr Rofe.
124The Court of Appeal in that original Dalgliesh[17] decision concluded that current sentencing practice did not reflect the objective gravity of the offending or the moral culpability of the offender. The Court spoke of the recurring themes in cases involving an offender with ongoing parental responsibilities towards a child under 18, the recurrent features being extreme invasion of the victim's person, exploitation of a vulnerable child, violation of societal norms,
[17]DPP v Dalgliesh (a pseudonym) [2016] VSCA 148
long-term and severe impact, serious breaches of trust and the undermining of familial roots of society. These features, they said, are common in incest cases occurring across the range of seriousness. They went on to say 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.
125The 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 suffered by victims; that there had been inadequate sentencing practices in the past.
126How did we arrive, then, at that position? The Court of Appeal in that case considered in detail many past cases and the statistics and what they disclosed, which was a complete lack of sentences above a certain band, a band which was so far removed from the maximum penalty provided for by the Parliament.

127There had been horrendous examples of the crime which seemingly had not been adequately punished, and the weight given by sentencing Courts to current sentencing practice had some responsibility for that sad state of affairs.
128In days gone by, it was not that uncommon to have a Court of Appeal determine an appeal against sentence in favour of an appellant whilst at the same time saying that but for the role of current sentencing practice, there was really nothing wrong with the sentence imposed in the court below. See, for instance, in a case not involving incest, the case of Gorladenchearau.[18]
[18]Gorladenchearau v The Queen [2011] VSCA 432; 34 VR 149 at [49].
129It is clear enough from the Dalgliesh line of cases that I have referred to that we had somehow, in this State, got to the point where inadequate past sentencing practices for the crime of incest themselves operated as an unwarranted constraint on sentencing, that the significance of current sentencing practices had, for whatever reason, been elevated to the point where they had then become determinative of sentence, operating in a way they ought not to, almost as an arithmetic fetter upon the exercise of the sentencing discretion by the court. That they had in fact become a controlling factor or primary consideration. Well, they are not, and the High Court made that very clear indeed.
130That is why such caution has to be adopted in considering sentences imposed in a pre-Dalgliesh time frame. The Judicial College of Victoria case tables alert us to the need for caution in looking at pre-Dalgliesh cases.
131Further, there was even a phase where, post-Dalgliesh, despite the very strong statements in that case, it was thought that the way to deal with the inadequate past practices was by way of a slow or incremental or gradual uplift rather than by an immediate response. There was, the Court of Appeal said, an aspect of fairness to that approach for people who had pleaded guilty with the expectation of being dealt with according to the deficient yet then existing current sentencing practice. Well, the High Court made it plain enough that one could not have any legitimate expectation of being dealt with on a flawed basis, but even if one did, the Court's true obligation was to sentence appropriately. That practice of incremental or gradual uplift was quite wrong, as the High Court made very clear.
132I am dealing with two offences of incest and two charges of sexual assault of a child under the age of 16.
133In relation to the incest and the sexual assault matters, you have none of the very sizeable benefits that accrue to a person who has pleaded guilty.
134I have looked at the Sentencing Advisory Council online resource relating to both the crime of incest with a stepchild and the sexual assault of a child under the age of 16. I have looked at the case collections available on the online Judicial College of Victoria sentencing case collection.
135Statistical material is inherently limited. It can never greatly assist a court in the individual sentencing task at hand.
136Statistics provide none of the detail of the offence or of the offender. None of the matters in mitigation or aggravation are disclosed. They do not disclose the frequency or duration of the conduct. They do not describe or identify the form of penetration. They do not describe whether the charge was rolled up or representative. They do not descend into the detail of the impact in a particular case. They do not even describe whether the matter was a sentencing exercise after a trial or after a guilty plea.
137I am exercising a sentencing discretion in relation to your crimes, and I am acting as a judge, not as a mathematician or statistician. What has happened in other cases or as disclosed in the statistical data cannot provide the answer to my task. What has happened in other cases does not operate as a precedent, and so many of the cases represented in the statistics would arise from guilty pleas with a whole range of mitigatory features that are plainly absent in this case. As I said earlier, a guilty plea in an incest matter is a very significant mitigatory matter for obvious reasons given the savings involved in that and the sparing of child witnesses from giving evidence.
138One can never find an identical case, and even if one could be found, there is no such thing as one correct sentence. There is instead a range of available sentences.
Gravity of Offences
139I am required to consider the gravity of the offences before the court. It was here that Mr Rofe used adjectives to describe where the various offences fell on the spectrum of offence seriousness. He argued that the crimes fell towards the lower end of objective seriousness, your culpability below the mid-range. Well, the prosecutor argued the objective seriousness and moral culpability was high in this case.
140As I said in the course of the plea, there must be a real risk of misunderstanding in the public gallery when counsel or a judge descend to discussion as to whether an offence is a serious example of a crime. A real danger of some misunderstanding when adjectives are used to plot it onto this spectrum of offence seriousness, as happened here, as though there is some mathematical precision in this task. Of course, there is not. These things can be so easily misunderstood. A person in the body of the court could so easily think, ‘What on earth are these lawyers doing? What are they talking about? This was the crime he committed on me, this was the impact. Of course, it is serious'. Well, if anyone thought that, they would be right. Make no mistake, incest is an inherently serious crime when it is committed by a stepfather upon a child. Sexual assault of a child aged under 16 is an inherently serious crime.
141Your counsel was not suggesting otherwise but was endeavouring to assist the court in making judgments as to the relative gravity of these offences, as I am required to do as a matter of law. It was for this reason that he addressed me, as he did, as to the absence of a range of features of aggravation that sometimes do exist. See paragraphs 7 to 10 of the outline. So he spoke of the one-off nature of the conduct, the absence of force or threat, though he conceded there was some pain and accepted the statements in Dalgliesh as to incest involving violence. He raised the absence in this case of deliberate humiliation or degradation over and above the act itself, that this was not a group acting in company. He dealt with the lack of risk of pregnancy or, impliedly, disease given the nature of the penetrative conduct, the fact that the conduct was not sustained or protracted. Well, I accept that these features of aggravation do not exist here. That is really not a matter in mitigation.
142The breach of trust is inbuilt into the crime of incest. A relationship is an element of the crime. Breach of trust is always there, and it must not be doubly counted by me. It is why the crime is so seriously viewed and why it commands a 25-year maximum prison term.
143Sexual assault of a child under 16 is, however, quite different. It is not a crime where a breach of trust is inbuilt at all. It can be committed without any breach of trust at all. Here, though, Kristen was your stepchild.
144There is, then, a serious aspect of breach of trust in relation to the two sexual assault charges as opposed to the incest where the relationship is built into the charge. As to Charges 1 and 3, the sexual assault charges, this was your stepchild. This is the victim you chose to offend against in the family home whilst others were present within that home. You had a duty to her. You had a duty to protect her and a duty to keep her safe. You had also a duty or obligation to the girl's mother.
145Then there was the conduct itself.
146Charge 1 involved skin-on-skin contact in the genital area as the lead-in to the digital penetration in Charge 2.
147A charge of sexual assault can never involve a penetrative act. Sexual assault of a child could be constituted by brief touching on the outside of clothing, for instance, to the buttock or breasts. Well, I am dealing with skin-on-skin touching in the most intimate of areas by a stepfather upon his 11-year-old stepchild in the girl's bedroom in the family home at night. The suggestion that such a crime might fall towards the low end of the range or have mid-range culpability is frankly, fanciful. It rates as a serious example of that crime, and the same goes for Charge 3 for the very same reasons – skin-on-skin touching of tongue to the anal area. Not just the nature of the conduct being skin-on-skin touching, but the venue and the relationship and the large breach of trust which is not built into this offence. Charges 1 and 3 represent serious examples of sexual assault of a child under the age of 16, and they were committed with a high level of moral culpability.
148As to the incest charges, I am dealing with what appear to be relatively brief acts of digital/vaginal and lingual/anal penetration on that one occasion.
149But those offences were brazen. They occurred on that one occasion when other people were present in the house.
150You were not in any way disinhibited. You were not acting in a state of compromised judgment when you committed those two acts. You knew exactly what you were doing and that it was wrong. Your conduct was, I believe, highly culpable.
151One can often enough envisage or construct a hypothetical worse case of any crime, including crimes of incest or sexual assault of a child under the age of 16.
152I have sat as a judge now for 14 years, and I have had the misfortune to have seen pretty much every feature of aggravation that one could imagine. They generally do not exist in a single case. An examination of the Judicial College of Victoria tables of sentencing cases will disclose the existence of many and varied aggravating features over the years. There are cases where there has been offending spanning many years, cases where there have been multiple pregnancies, cases where there has been childbirth or abortion. There have been some involving serious acts of violence over and above the violence constituted by the actual penetration. Cases sometimes involve threats. Sometimes there has been filming or photography or other acts designed purely to humiliate and to degrade. Sometimes there has been 'in company' offending. Sometimes there are very small infants offended against. The possibilities are almost endless.
153There is always, though, a danger in trying to rank offences by applying an adjective to describe them. Low-level, mid-level, high-level or falling towards any of those levels – what does it really mean? Those terms, I am sure, mean different things to different people. It is a practice that has been disapproved of by the Court of Appeal. See the case of Weybury.[19] Yet, of course, I must reach a view as to the nature and gravity of these instances of incest.
[19]DPP v Weybury [2018] VSCA 120.
154I do accept that the incest charges do not fall anywhere towards the highest level. Nor, though, do they fall at the lowest level. I believe they fall towards mid-range, viewed objectively.
155Your culpability, though, for those acts was high indeed.
156The sexual assaults have a much lower maximum penalty but represent, in my view, serious examples of that offence given the physical conduct, the venue, the age of the girl and the relationship in existence. The breach of trust in relation to those two offences is a significant feature of aggravation.
Serious Offender Provisions
157Mr Rofe accepts that a prison term is required on Charges 1 and 2 and that therefore I will be sentencing you as a serious sexual offender on Charges 3 and 4.
158Under the serious sexual offender provisions set out within the Sentencing Act, unless I otherwise direct, the sentences passed upon you from the third sentence would be served cumulatively upon the earlier sentences imposed and upon each other (see s6E of the Sentencing Act).
159Additionally, for the sentences imposed from that point, I am required to treat the protection of the community as the principal sentencing purpose. See 6D. To achieve that purpose, for those two charges where you fall to be sentenced as a serious sexual offender – and only those two, so Charges 3 and 4 – I do have the power to impose a disproportionate sentence to achieve that principal purpose. The prosecution did not submit that that power should be exercised here, and I make plain that I will not pass any disproportionate sentences in this case.
160I am required to give weight to the serious offender provisions. I must give some weight to s6E. It is not my job to undermine that provision. It is clear, though, from the case law in this area that I still must pay regard to the principles of totality of sentence, which I will move to shortly. Totality, though modified, is still of importance in my task.
Totality
161You heard Mr Rofe address me as to totality of sentence. I am required to give 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 crushing sentence and to ensure that the overall effect is consistent with your actual criminality here. Your overall criminality was high in this case. There is no reduction in your moral culpability at all.
162There was some discussion on the plea as to the extent of cumulation or concurrency. Your counsel spoke of the fact that these four offences occurred on that single occasion. That there accordingly should be some concurrency as between the sentences imposed. Plainly, that is correct. To make every sentence cumulative or consecutive would lead to a staggering total that would infringe this important principal of totality, modified though it is in this case.
163Quite aside from the presumption in favour of cumulation that is found in s6E of the Sentencing Act, which applies from the third sentence imposed, there would be the need to cumulate to some extent here for the sentences imposed for each act. No doubt each act each would have contributed to the overall impact described by Kristen. She described how she felt at the time of the vaginal penetration. She was hurt physically. She described the weirdness of the anal penetration, how these things made her feel. That four offences occur in tight proximity or a single episode is no warrant for complete concurrency at all. It will depend on the nature and seriousness of the offences and their contribution to the overall impact. See the case of O'Rourke.[20] Mr Rofe was not for one moment suggesting that there should be total concurrency here. I also have the provisions of s6E as to cumulation.
[20]R v O'Rourke [1997] 1 VR 246.
164Charge 2 and 4, the charges of incest, were each serious crimes in their own right. There must be a decent level of cumulation to recognise that fact and the contribution that that serious criminal act had to the overall impact described by Kristen. There can be some moderation in relation to the extent of cumulation ordered on the sexual assault charges. Those charges involved touching that was the preamble or prelude to the more serious act in each case, and I do believe that that justifies a much greater degree of concurrency here.
General
165I turn, then, to some general matters of sentencing.
166In sentencing you, there are a range of matters that I am required to take into account.
167I must consider the various sentencing purposes set out within the Sentencing Act: punishment, rehabilitation, denunciation, specific and general deterrence and community protection.
168There are many matters which must be taken into account by a court, including the offence maximums, the impact of the offence and current sentencing practices. I have mentioned already the impact has been profound. I am required to take that into account, and that is not just some neutral finding having no impact upon sentence.
169You certainly do have prospects of rehabilitation. I pay regard to them. I have said that I am a bit guarded about them for the reasons that I have set out, but I think they do exist. I think they are fair or reasonable.
170I have to punish you. I must do that justly and proportionately. That is an important sentencing purpose in this case.
171I must denounce your conduct. That is also important. I do strongly denounce your conduct. You have committed serious crimes upon your stepdaughter. Those crimes have produced a very sizeable impact upon her and her mother and the family unit. You should be ashamed of yourself, but very evidently are not.
172I must consider the protection of the community from you. That is the principal purpose for those two crimes where you fall to be sentenced as a serious sexual offender. You obviously present some risk to the community. The extent of that risk is very hard for me to gauge.
173I must give weight to 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 of course you will be far older upon your ultimate release, I must still give some weight to this purpose. You must be deterred from ever committing such crimes as these ever again.
174Of course, as I said on the plea, if you had any sort of relevant criminal history, greater weight would no doubt be given to this purpose. But it still must be given weight here given the serious nature of these crimes, your present attitude to them and the fact that they are not that distant and plainly were accompanied by some aberrant mindset.
175I have mentioned also general deterrence. That relates to the need to deter others who might be minded to commit this type of offending. General deterrence looms large in this sort of case. It is a highly relevant purpose of sentencing for these various matters that I am dealing with. These were four crimes in a tight time frame, all involving sexually exploiting a vulnerable child. That child was your stepchild.
176We, as judges, must send a very clear message to those who may think it open to sexually exploit children in any way. The courts, by the sentences imposed in these kinds of cases, seek to make clear to others in the community that such abhorrent conduct as yours will not be tolerated and will be met by stern punishment. The hope is that other like-minded future offenders might actually be deterred from offending.
177Prison is a disposition of last resort. There is no doubt that it is required in this case.
Sentence
178I will now pass sentence.
179I am sorry to have taken such a long time in getting to this end destination, but I needed to explain to you, to your victim, to her family and to so many others my reasons for passing the sentences that I will soon pronounce in this case.
180You and everyone one else in this court, other than perhaps the lawyers, will lose track of the individual numbers, and then my mixed orders for cumulation, and then as to the level of concurrency. It can be very confusing, and you will not know what it all means until I am finished. Do not just add up the numbers. At the end of this process, I will explain what it all means by way of a total effective sentence, and then I will tell you what the non-parole period is. Only then will you understand the actual effect of the sentences that I now move to impose.

181Stand up, please.
182On Charge 1, sexual assault of a child under the age of 16, you are convicted and sentenced to three years' imprisonment.
183On Charge 2, sexual penetration of a stepchild (or incest), I convict and sentence you to nine years' imprisonment. That will be the base sentence.
184From this point, you fall to be sentenced as a Serious Sexual Offender.
185On Charge 3, sexual assault of a child under 16, you are convicted and sentenced to three years' imprisonment.
186On Charge 4, sexual pentation of a stepchild (or incest), you are convicted and sentenced to nine years' imprisonment.
Cumulation
187The base sentence is the nine years imposed on Charge 2. I now direct as to the level of cumulation between Charges 1 and 2.
188I direct that six months of the sentence imposed on Charge 1 is to be served cumulatively upon the base sentence and other part-cumulative sentences. To that point, then, there is a sentence of nine and a half years.
Serious Sexual Offender for Charges 3 and 4: s6E Extent of Concurrency
189As I have sentenced you to terms of imprisonment on Charges 1 and 2, it follows that I have then sentenced you as a serious sexual offender in relation to Charges 3 and 4 on the indictment. As I said earlier, unless I 'otherwise direct', those sentences would be served cumulatively upon each other and upon all other sentences. That would plainly offend the principle of totality.
190I make the following directions as to the extent of concurrency. So I am now setting out the extent to which I 'otherwise direct or order' under the provisions of s6E of the Sentencing Act. I direct then that
·two and a half years of the three-year term imposed on Charge 3; and
·six and a half years of the nine-year term imposed on Charge 4

is to be served concurrently upon the base sentence imposed on Charge 2, and the partly cumulative portion of the sentence imposed on Charge 1 and upon each other.
191It is to this extent that I otherwise direct under the provisions of s6E. Those orders for concurrency translate into an additional three years' cumulation upon the base sentence, Charge 2, and the part-cumulative term imposed on Charge 1.
192I told you that this would not be easy to follow and partly that is because I have followed the wording of the Sentencing Act in directing, firstly, the measure of cumulation, and thereafter the extent of concurrency.
Total Effective Sentence
193Those orders, both as to the extent of cumulation and then the extent of concurrency, result in a total effective sentence of 12 and a half years' imprisonment.
Non-Parole Period
194Given the dimensions of that sentence, I am required by law to fix a
non-parole period.
195Whether you are admitted to parole or not will be a matter entirely in the hands of the Adult Parole Board. In fact, I am prohibited from even considering that possibility. I will not speculate about whether you will be paroled or not.
196I fix a period of 9 years during which you will not be eligible for release on parole.
Section 18 Pre-Sentence Detention
197You have already spent 92 days in custody by way of pre-sentence detention. That period is to be reckoned as already served by way of pre-sentence detention, and that declaration will be entered into the records of the court.
Serious Sexual Offender
198You have been sentenced by me as a serious sexual offender in relation to Charges 3 and 4 on this indictment. That fact is also to be noted in the records of the court.
199Just have a seat, then, for a moment.
Sex Offenders Registration Act 2004
200You have been sentenced by me in relation to what are described in the Sex Offenders Registration Act 2004 as two class 1 and two class 2 offences. I note, however, that all the offences described occurred on the same day, and hence they are not separately counted. They are treated as a single offence under the relevant provisions. See s34(3)(a) of the Sex Offenders Registration Act.
201It follows, then, that you must comply with your reporting and other obligations under the Sex Offenders Registration Act for the period of 15 years
following your release from custody.
202I am going to shortly have handed to you a document that will explain your many obligations under the Act. It is not suggested you are going to sit there now and read it all; it is a very lengthy document. You will need to acquaint yourself with it in due course, but at this stage I am having it provided to you for you to sign to acknowledge that you have received those explanations.
203Mr Rofe, I mean, you have seen these documents before, I trust.
204MR ROFE: Yes.
205HIS HONOUR: They are very detailed, they are very lengthy. It is not suggested that he is going to sit there and read all these things now or understand them. He will not.
206MR ROFE: No.
207HIS HONOUR: It would be impossible. It is simply him acknowledging by his signature that he has received those explanations that I am required to provide in that format to him. So if you need to, I am happy for you to go down and speak to him, but I will be getting him to sign a form acknowledging receipt of those matters. Do you need to speak to your client or not?
208MR ROFE: If I could do so briefly, Your Honour.
209HIS HONOUR: Yes, go ahead.
210MR ROFE: Just excuse my back. Thank you for that, Your Honour.
211HIS HONOUR: There is no issue in terms of that?
212MR ROFE: No.
213HIS HONOUR: I simply explain it because we tend not to want to put our signature to a document we have not read, but all he is doing is acknowledging getting the document.
214MR ROFE: Yes.
215HIS HONOUR: So I will have that go down to him, and he can sign that then, thank you.
216MR ROFE: Thank you.
217HIS HONOUR: Well, no doubt these things will be explained to you in due course, and you will be able to understand the effect of the Sex Offender Registration Act provisions when you read that document at your leisure.
218The Sex Offenders Registration Act imposes a number of conditions upon you, including impediments to future employment in a number of areas. There are meaningful impediments to your future contact with children and the obligation to report contact as well as many other matters. You need to familiarise yourself with those matters in due course, as any breach of that Act or your reporting obligations under that Act is itself a serious criminal offence, one that is very often punished by a term of imprisonment.
219Let me just see if there is anything else I need to attend to. Mr Triandos, anything from you at all or not?
220MR TRIANDOS: No, Your Honour.
221HIS HONOUR: Mr Rofe, anything from you?
222MR ROFE: No, Your Honour.
223HIS HONOUR: All right. Well, look, I thank each of you for your assistance in the course of the trial and the plea. You will go down and see your client today, Mr Rofe, will you?
224MR ROFE: Of course, I will, Your Honour, yes.
225HIS HONOUR: And you will explain, obviously, the effect of what has occurred – I think he understands it – and his rights in relation to this whole process. I will get these – they are very lengthy reasons, I am afraid, as you would all appreciate now, having been pinned down there for close to two hours, but I will revise them when I get them back from the transcribers and release them on the day that I revise them, and I typically will revise on the day that I get them back. So that might be a few days from now.
226But I think that completes the matter, then. I have a bail application waiting in the wings. I think what I will do is I will head down to chambers and come back up, all right.
227Look, and I should have asked you directly. Just bear me with. There is no need for any further custody management direction?
228MR ROFE: No.
229HIS HONOUR: No, all right, thank you. Well, look, that completes the matter, then. As I say, I am sorry I have taken so long to get to the end destination, but Mr Murray can be removed now, and Mr Rofe will come down and have a chat to you, Mr Murray.
230Yes, all right. Well, I will stand down until 12 o'clock, thank you.

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[2024] VCC 730

21 May 2024