Director of Public Prosecutions v Nelson (a pseudonym)
[2018] VCC 2135
•12 December 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WAYNE NELSON (a pseudonym) |
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JUDGE: | HER HONOUR JUDGE MARICH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 November 2018 | |
DATE OF SENTENCE: | 12 December 2018 | |
CASE MAY BE CITED AS: | DPP v Nelson (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 2135 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr N. Goodenough Ms L. Keys | Office of Public Prosecutions |
| For the Accused | Mr H. Rattray | Balmer & Associates |
HER HONOUR:
1
Wayne Nelson[1], you have pleaded guilty to an Indictment containing two counts of sexual penetration of a step-child, each of which carry a maximum penalty of
[1] A pseudonym name
25 years’ imprisonment; one count of sexual assault of a child under the age of 16, a representative count, which carries a maximum penalty of ten years’ imprisonment; one count of sexual activity in the presence of a child under the age of 16, which carries a maximum penalty of ten years’ imprisonment; and one count of using a carriage service to transmit indecent communication to a person under 16 years which carries a maximum penalty of seven years’ imprisonment.
2 One related summary matter was uplifted into the hearing of the plea in mitigation of penalty and you pleaded guilty to that charge, which was one count of contravene family violence safety notice which carries a maximum penalty of two years’ imprisonment or a fine of a maximum of 240 penalty units or both.
3 The circumstances in which you came to commit those offences are set out in the Summary of Prosecution Opening dated 29 October 2018, which was read into evidence at your hearing (Exhibit A). I have had regard to that opening when determining the appropriate sentence in your case. A victim impact statement was filed (Exhibit B), to which I will return, and the prosecution also relied on a sentencing snapshot for the offence of sexual penetration with a child under 12 (Exhibit C).
4
In addition to making oral submissions, your Counsel relied on a written Outline of Submissions on Plea in Mitigation dated 19 November 2018 (Exhibit 1) and a report of Mr Patrick Newton, Clinical and Forensic Psychologist, dated
15 November 2018 (Exhibit 2). I have had regard to those submissions and
Mr Newton’s report in formulating my reasons for sentence. A bundle of certificates of completion of courses was also tendered by your counsel
(Exhibit 3).
Circumstances of the offending
5 The victim in this matter is Loreley ARMENTA[2] a Colombian national who was aged 11 and 12 at the time of the offending. She was the daughter of your wife, Melea ARMENTA[3].
[2] Loreley ARMENTA is a pseudonym.
[3] Melea ARMENTA is a pseudonym.
6 In March 2015, Melea ARMENTA first arrived in Australia from Colombia; her daughter, Loreley, remained in Colombia with her grandparents. Melea ARMENTA met you, and you commenced a relationship. In February 2016, you travelled to South America with Ms Armenta, where you became engaged to be married.
7 You first met the complainant, Ms Armenta’s daughter, on 19 February 2016. You returned to Australia alone in March 2016, and moved into a rented property in Patterson Lakes. You eventually sub-let two bedrooms of the house, one to Katherine GLENN.[4]
[4] Katherine GLENN is a pseudonym.
8 Ms Armenta returned to Australia to live with you on 26 June 2016. On 29 July 2017, you and Ms Armenta were married.
9
On 9 August 2017 the complainant arrived in Australia to live with you and her mother in your home at Patterson Lakes. The complainant was then aged
11 years old.
10 Between 9 August 2017 and 19 September 2017, approximately one week after the complainant arrived in Australia, you were alone with the complainant in your bedroom. You and the complainant kissed, and the complainant bit your lip. You told the complainant this excited you, and took her hand and placed it on your erect penis over your clothes (these incidents are uncharged, and provide context for the charged offences).
11 You then removed your erect penis from your trousers and took the complainant by the back of her head, pushing her towards your penis. You inserted your penis into the complainant’s mouth, orally penetrating her. This is the offending referable to Charge 1 on the Indictment.
12 You then removed your penis from the complainant’s mouth and masturbated and ejaculated in front of the complainant (this act is also uncharged). You then went to the bathroom to clean yourself, before returning to the bedroom to watch TV with the complainant.
13 One evening between 9 August 2017 and 19 September 2017, on an occasion separate to the offending on Count 1, you were driving to pick up Ms Armenta from her place of employment. The complainant was in the vehicle with you. She was seated in the passenger seat. Upon arriving in Richmond, you parked the car in a secluded area. The complainant touched your penis and you touched the complainant’s vagina on top of her jeans whilst kissing her. You tried to unbutton the complainant’s pants but the complainant stopped you. She told you that she had her period (these acts are also uncharged and also provide context for the charged offences).
14 Whilst in the car, you then removed your penis from your pants and orally penetrated the complainant with your penis. You ejaculated in the complainant’s mouth. This is the offending referable to Charge 2 on the Indictment.
15
The next charge is a representative count. Between 9 August 2017 and
10 January 2018, in a bedroom at the Paterson Lakes address, you simulated sexual intercourse with the complainant. You laid on top of her on the bed and moved on top of her, whilst you were both fully clothed. Whilst you were doing this, you touched and sucked the complainant’s breasts. The latter is uncharged conduct.
16 The conduct of simulating intercourse with the complainant occurred on a second occasion. Whilst you did this, you again touched and sucked the complainant’s breasts.
17 Between 9 August 2017 and 10 January 2018, you sent the complainant sexually explicit images. The complainant received a video of you masturbating your penis via a video call on Facebook. This is the offending referable to Charge 4 on the Indictment.
18 Also between 9 August 2017 and 10 January 2018, you sent multiple images and a video to the complainant. The photos depicted your penis and the video was of you masturbating your penis. This is the offending referable to Count 5 on the Indictment.
19
On 10 January 2018, the complainant returned to Colombia to meet her mother, Ms Armenta, who had returned to Colombia a few days earlier. On 29 January 2018, you and your two housemates moved to a new address in Lyndhurst. On
2 March 2018, the complainant returned to Australia with her mother and they moved into the new Lyndhurst address with you and your two housemates.
20 Between 2 March 2018 and 1 April 2018, you and the victim cuddled in the kitchen and kissed passionately on the lips. The complainant was 12 years of age at the time (this is uncharged conduct and I take it into account as context for the charged offending).
21 Around 28 March 2018, the complainant was at home in Lyndhurst. Katherine Glenn, one of your housemates, attended the complainant’s bedroom and the complainant told her that you had orally penetrated her and ejaculated into her mouth. Ms Glenn told both you and the complainant’s mother, Ms Armenta, what the complainant had alleged occurred.
22 On 1 April 2018, the complainant called emergency services and requested police attend at her home in Lyndhurst. Police attended and Ms Armenta reported the complainant’s allegations to Police. You were detained under Family Violence holding powers. At 7 pm that evening, a Family Violence Safety Notice was applied for and issued. One of the conditions of that Notice was not to attend the Lyndhurst home address. The conditions were explained to you before your release from Narre Warren Police Station at 8.12 pm.
23 At approximately 9 pm, you returned to the Lyndhurst address in breach of the Family Violence Safety Notice issued and explained to you less than two hours earlier. You were observed by your two housemates. You spoke with the complainant and Ms Armenta for approximately ten minutes before leaving. This is the offending referable to the related summary charge.
Investigation, arrest and interview
24 On 3 April 2018 at 5.52 pm, the complainant participated in a VARE, detailing the allegations against you.
25 At 11.36 pm that evening, Police executed a search warrant at the Lyndhurst address. Several exhibits were seized, including a mobile phone belonging to the complainant’s mother and a mobile phone belonging to the complainant. A video chat between you and the complainant was recorded on Melea Armenta’s mobile phone, where the complainant refers to telling Ms Glenn about the allegations and you tell the complainant not to tell anyone else, as it was your “secret.” Other recordings were located on this phone between you and the complainant.
26 The Complainant’s mobile phone also held recorded conversations between you and the complainant’s mother, discussing the allegations.
27 On 3 April 2018, at approximately 10.20 pm, you attended Dandenong Police Station, where you were arrested. You made full admissions in relation to the allegations made by the complainant. You described the complainant as "very smart, intelligent, nice girl and bubbly". You stated that the complainant had initially requested to kiss you on the lips like a boyfriend, as she liked older men. You told police you denied the complainant’s request "until something changed inside my head and I said, 'Okay’". You told police in your interview that, as the complainant did not speak English well at that time, the two of you communicated through Google Translate.
28 You told police you were excited at the time of the conduct, but felt sick afterwards. You also told police you were worried about getting caught, about losing your marriage and your wife. In relation to the sexual offending, you stated to police that you knew the victim’s age, but in your mind she was "older". She talked and acted much older and that in your mind, something said "Okay" and you could not explain that further.
29 You told police during the interview that, about two weeks prior to interview, you had told your wife about your offending after being threatened by the complainant and that your wife had said that she would try to support you and forgive you. You also told police that about one week prior to your confession with your wife, your housemate, Katherine, had told you that the complainant had made accusations against you to her and you implored her not to tell your wife. You replied, “It’s not true,” and, “She obviously wants to go back to Colombia. She wants to take her mum with her. She wants to destroy my life” (A425). You recounted that when Katherine had told your wife, you denied everything. You made full admissions to the offending when put to you.
30 In relation to the breach of the Family Violence Safety Notice, you were aware that you were prohibited from attending the address in Lyndhurst and told police you attended the address because you wanted to speak with your wife and that you were drunk at the time.
Effect on the victim
31 The complainant provided a victim impact statement, discussing the impact of the offending upon her (Exhibit B). In summary, she has said:
I don’t have a home anymore. I haven’t been able to speak to my family regularly and I feel like I’ve lost them because I haven’t been able to talk to them a lot. My phone and computer were taken by the police, I feel isolated and alone.
It’s really hard not living at home. I feel sad because I haven’t been able to have contact with my family. I am looking forward to Christmas and my 13th birthday coming up but I don’t know where I’ll be staying and may be with people I don’t know. Changing from home to home is pretty rough. The system is so frustrating!
Plea of guilty
32 As I have mentioned, you were arrested, interviewed and charged on the evening of 3 April 2018 and early morning of 4 April 2018. You made full admissions during the interview and were remanded into custody. On 24 August 2018 at a committal mention in the Melbourne Magistrates’ Court, you indicated your intention to plead guilty and on 31 August 2018 at a further committal mention, your plea of guilty to these charges was confirmed. This obviated any need for the complainant to give evidence beyond her participation in the VARE.
33 I accept and take into account that you pleaded guilty at the earliest opportunity and as submitted by your counsel that that plea has utilitarian value, as well as reflecting your remorse, which is a topic to which I will return.
Personal circumstances
34 I have read and considered carefully a report of Patrick Newton, clinical and forensic psychologist, dated 15 November 2018. Your Counsel adopted your personal circumstances and background as included in the report. Counsel also addressed the contents of the report in the course of the plea.
35 You are now 38 years old, and were 36 and 37 at the time of offending.
36 You attended local primary schools in Rowville. You attended Rowville Secondary College and then Boronia Technical School until the end of Year 10. You described yourself to Mr Newton as being an average student.
37 After leaving school, you completed an apprenticeship as a butcher. You have worked in that field for 22 years, rising to become the manager of a network of 18 stores. Your counsel submitted you have a good work ethic and work history. In your interview with Mr Newton, you spoke of your work achievements with deserved pride. Your time on remand has been your first break in employment for over 20 years. I give mitigatory weight to your good work ethic and good work history.
38 You were the second of three children in your family. Your family were devout members of the Christian Brethren and church activities were central to your family's activities throughout your childhood and early adult years. You regularly attended Bible studies and youth groups. Your father operated his own business and your mother devoted herself to home duties. Your family was materially comfortable and your parents' relationship was free from serious conflict. Discipline within your family was relatively strict, in keeping with the family’s religious beliefs.
39 You reported to Mr Newton that you did not suffer from any significant childhood illnesses or injuries and were not the subject of any form of mistreatment. You reported no family history of alcohol or drug abuse, mental illness, family violence or criminality.
40 When you were 16 years old, your older brother passed away in a car accident and that has, very understandably, caused you considerable grief, which continues to trouble you. You have never participated in counselling to address your unresolved grief.
41 You were expelled from the Christian Brethren when you divorced your first wife and as a result, you were shunned by your family and mutual friends and have had no contact with your family since.
42 You reported to Mr Newton that you did not date as a teenager and socialising was confined to those within your church community. Sexual matters were not openly discussed in your family and you faithfully followed the conservative values of the church.
43 You have been married three times. Your first wife, Julia,[5] a fellow member of the Christian Brethren, was your first sexual partner. You married Julia when you were 21, then you separated in 2008 and divorced, which led to your estrangement from your family and friends, which I have mentioned.
[5] Julia is a pseudonym.
44 You have two children to this marriage now aged 12 and 13. You had regular contact with your children, until you began seeing Ms Armenta, as a result of Julia finding it difficult to accept your wife. Contact with your children has slowly become less frequent and you have had no contact with them while on remand.
45 You met your second wife, Natalie,[6] through work and had one child to the marriage, a son, now aged five. After your marriage with Natalie broke down, she relocated to North Queensland with your son and you have had no contact with your son in recent times.
[6] Natalie is a pseudonym.
46 Your most recent relationship was your marriage to Melea Armenta, the mother of the complainant. You met in 2015 in Australia. You travelled to Colombia in February 2016 with Ms Armenta, where you met her daughter, the complainant. As I have noted above, in March 2016, you returned to Australia and in June 2016, Ms Armenta returned to Australia and the complainant, of course, came to Australia to live with you and her mother in August 2017.
47 You told Mr Newton you found it difficult to adopt the role of step-parent. You had been told the complainant had experienced a range of behavioural and psychological issues in Colombia, but you considered that "things would be okay once she came to Australia". You did not participate in any education or personal development activities connected to the role of a step-parent. You found it difficult to communicate with Ms Armenta and the complainant, as you knew minimal Spanish. And as I have mentioned, you would often use "Google Translate" to communicate with your wife and the complainant.
48 Notwithstanding the difficulties in communication, you commenced your sexual abuse of your step-daughter one week after she arrived in Australia, having been separated from her mother for the 14 months prior to her arrival.
Remand
49 I note that your time on remand has been productive and I accept and take into account your completion of courses whilst in prison, including the completion of a Certificate II in Cleaning Operations, and a Certificate II in Construction Pathways, a Healthy Lifestyle Program and a No to Violence Program (Exhibit 3). I have been told you are currently working in the industry section of the prison and that you have been promoted to a leading-hand position.
50 Your counsel advised you are actively attempting to participate in sex offence programs whilst on remand. But I am told this program is not available while you are on remand, but that you can commence sex offender rehabilitation programs as soon as sentenced.
51 Whilst you do not have fulsome support from your family during your time in custody, I am told that you have three or four very close friends who support you and will assist you to reintegrate upon your eventual release from custody.
Psychological report
52 I have previously noted your grief response to the sad loss of your brother, which Mr Newton notes includes deep sense of loss, together with feelings of emptiness. Your grief remains unresolved even now.
53 Mr Newton noted that after your arrest on these matters, you have experienced a brief period of intense reactive depression, which included an experience of strong suicidal ideation. You reported to Mr Newton that the depression had passed once you were moved to Hopkins Correctional Centre and adjusted to the routine there. You were not prescribed any medication at this time and did not participate in counselling or other mental health care.
54 You reported to Mr Newton you are generally a light drinker. In the period surrounding your arrest in these matters, you reported you had drunk to excess to suppress the stress you were feeling. It was in this context you contravened the Family Violence Safety Notice. You denied any history of illicit drug use.
55 Mr Newton reports that he does not consider you to be suffering any mental disorder. Further, Mr Newton reports there is no indication to suggest you were labouring under the effects of a mental disorder at the time of your offending.
56 Mr Newton reviewed your interpersonal adjustment and he found you have difficulty understanding and discussing your feelings and remain immature interpersonally and emotionally. Mr Newton noted you have ongoing issues with your capacity to sustain mature intimacy. In particular, you tend to idealise your partners during the initial phases of a relationship and then experience feelings of intense disappointment and disillusionment as their foibles and faults inevitably emerge over time. You tend to move onto a new idealised partner, with whom you repeat this cycle, as you lack the skills to manage your disillusionment.
57 Mr Newton opined that these traits will cause some problems in your relationships, but do not meet the criteria of a personality disorder and your social reasoning and moral judgment are not impaired.
58
You denied any attraction to pre-pubescent individuals in your interview with
Mr Newton and reported that you are attracted to adult females. Mr Newton’s assessment indicates the presence of several “key areas of concern” in your sexual adjustment, which I will set out in full, as they provide perspective and clarity as to Mr Newton’s professional opinion as to the ongoing risk factors that are present in your case.
59 At paragraph 34 from Mr Newton's report I read:
"Firstly, he attributed a precocious level of sexual development to the complainant. He acknowledged openly that despite her age, he had viewed her as a sexually and emotionally mature individual. His awareness of her reported involvement with behaviours such as drinking, drug use and early sexual experimentation with her peers led him to conceive of her as being sexually and emotionally mature. Simultaneously he discounted any physical signs that she was still in the process of physical maturation, such as the insipient stage of her breast development and focussed on other characteristics, such as the fact she was menstruating, as evidence she was also physically mature. From these observations he rationalised that, despite being below the age of consent, the complainant possessed the psychological, physical and emotional capacity to allow her to determine if she wished to participate in sexual activity with him. In turn, he then felt free to allow himself to pursue his own sexual gratification with her as the offending unfolded. The cognitive distortions which underpin these views should be the focus of ongoing specialist treatment."
Paragraph 35:
"Secondly, beyond attributing a precocious maturity to her, Mr Nelson also perceived the complainant as being the dominant and active party in their interactions, conversely perceiving himself as passively responding to her advances. He thus inverted the power relationship that in fact existed between them, seeing himself as powerless and as having no choice but to accede to the demands which he asserts the complainant made of him. Thus he stressed that it was the complainant rather than himself who had dictated the timing and nature of their contact and attributed this to her malevolent desire to destroy his marriage so that she could return to Colombia. His continued recourse to this victim- blaming narrative is deeply concerning and clearly needs to be addressed in treatment."
Paragraph 36
"Thirdly, Mr Nelson's behaviour points to severe issues with his sexual boundaries. These arise from the immature personality dynamics described above. Rather than maintain appropriate propriety, ensure that his step-daughter's behavioural problems were addressed and protecting the integrity of his marriage, Mr Nelson took advantage of the complainant's vulnerability to pursue his own sexual gratification and act out his need for an idealised sexual partner. In short, he failed to adopt a parental role with her and instead viewed her as an alternative sexual partner to whom he could turn to compensate for his wife's absence and in the context of other issues, establishing intimacy in their fledgling marriage."
Remorse
60 I have previously noted that you candidly told police during your interview that you had been confronted by your housemate, Katherine, as to the complainant’s complaint of your offending, and you falsely denied any wrongdoing and falsely claimed that the complainant, then aged 12, wanted to destroy your life. One week later, you said, after being threatened by the complainant, you confessed to your wife.
61 You have expressed regret in relation to the offending to Patrick Newton, clinical and forensic psychologist, in the course of his interview with you stating, "I’ve ruined my life. I’ve lost my marriage. I’m in gaol. I just feel sick about this". I have also noted that you have made full admissions to police, as well as pleading guilty to the offences at the earliest opportunity.
62 Mr Newton noted in his report your narrative of events stressed the complainant’s role as the initiator and dominant party. This is consistent with your characterisation of the complainant’s role in the offending in your police interview (albeit while you admit the offending itself).
63 In Mr Newton’s assessment, this "clearly compromises the level of remorse and acceptance of responsibility for [your] conduct". In the course of submissions, your counsel agreed that your level of remorse is better expressed as regret, as opposed to true remorse. I am prepared to allow some mitigatory weight for your expression of contrition for the offending, whilst noting that you fall short of understanding the nature of and motivation for your offending and its effect upon the victim of your abuse. And I interpolate that this is further and separate to the utilitarian value of your pleas of guilty.
Prior criminal history
64 I note that you have no prior criminal record and in combination with your good work ethic and professional history, I consider your good character prior to the offending to attract significant mitigatory weight.
Objective gravity of the offending
65 Your counsel accepted, in his written submissions and in oral argument, that the offending is serious and that I must impose terms of imprisonment.
66 Whilst it was accepted that these offences involve a breach of trust by your counsel, it was submitted on your behalf that you had only known the complainant for a short period, which reduced the weight in aggravation that might otherwise attach to the fact of the relationship. This is an argument that cuts both ways, to use the colloquial, as this particular complainant, in addition to being very young and aged only 11 at the commencement of offending, had only very recently arrived in Australia, which was a foreign country to her, spoke little English and communicated mostly via Google Translate and had been separated from her mother, your wife, for the 14 months prior to that, as her mother had come to Australia to live with you. She was in a vulnerable position and whether you were prepared to assume responsibility as her step-father or not, you were quick to exploit her in circumstances of her social isolation. Even once you had become more familiar with her, your sexual attraction to her and willingness to act on that sexual attraction endured, as indicated by the continuing counts on the indictment.
67 I find that the offending on counts 1 and 2 was serious offending. The offending was opportunistic, callous and exploitative. In addition to her young age and vulnerabilities, self-evidently, each offence involved oral penetration of your 11 year old step-daughter for your sexual gratification. Each offence falls within the mid-range of seriousness for this offence. Charge 3 is representative, and this as well, as the remaining counts show your persistence of this child, your exploitation of your sexual attraction to her on multiple occasions, notwithstanding her young age and your pursuit of sexual contact with her.
68 I note that upon being convicted and sentenced to terms of imprisonment on Charges 1 and 2 on the Indictment, that you fall to be sentenced as a serious sexual offender on Charges 3 and 4 (though not Charge 5 which falls outside the regime). I accept your counsel’s concession that immediate imprisonment must be imposed on Counts 3 and 4 and accordingly, pursuant to s.6D of the Sentencing Act on Counts 3 and 4, I must regard the protection of the community from you as the principal purpose for which sentence is imposed. Counsel for the prosecution noted that a disproportionate sentence was not sought in the circumstances of the case and I do not intend to impose sentences on those counts which are disproportionate to the gravity of the offence considered in light of the objective circumstances.
69 There is no doubt that sexual offences against children call for just punishment, public denunciation and general deterrence, as expressed most recently by the Court of Appeal in Victoria in Shawcross v The Queen[2018] VSCA 295, [63]. This is also a case demanding specific deterrence.
70 On the other hand, as mentioned, I have noted the matters that stand to your credit, including that you pleaded guilty at the earliest opportunity and made extensive admissions to police and your indications of some regret for your actions, albeit that that there are real concerns about the level of insight that you have into the gravity of your offending.
71 Mr Newton has assessed your risk of recidivism as being low to moderate, ie a risk of recidivism that is slightly lower than that of a typical sex offender in the community. In relation to ongoing risk factors, as I have mentioned, he notes your limited insight, continued endorsement of attitudes that support your offending and tendency to attribute responsibility to the complainant. These, he recommends, should all be the focus of offence-specific treatment and he notes that it is likely that with appropriately targeted treatment and the use of other containment strategies, in the medium term, your risk of recidivism would trend towards the "low risk" range, suggested by historical variables.
72 Current sentencing practices are a factor for me to take into account.[39] However, as Dalgleish makes clear [2017] 91 ALJR 1063, [64]–[68], "Current sentencing practices are not a controlling factor and an offender pleading guilty has no legitimate expectation that he will be sentenced consistently with current sentencing practices, rather than being sentenced justly according to law (see also Shawcross v The Queen[2018] VSCA 295, [65]).
73 In accordance with your counsel's submissions and Mr Newton's recommendations, I find that notwithstanding the need for your confinement for an extended period, subject to the attitude of the Adult Parole Board that you should be heavily supervised for an extended period upon your eventual release. Though I will impose an appropriate measure of cumulation in respect of Counts 1 to 4 on the indictment to reflect each separate offence, I am mindful of the totality principle of sentencing and of course the need to avoid a crushing total effective sentence.
Sentence
74 On charge 1, I convict you and sentence you to six years and nine months' imprisonment. This is the base sentence.
75 On Count 2, six years and nine months' imprisonment, two years and three months of which must be served accumulatively upon the base sentence.
76 On Count 3, I impose three years and three months' imprisonment, 12 months of which must be served accumulatively in relation to the base sentence and all other sentences. On this count I declare you a serious sexual offender.
77 On Count 4, two years, three months' imprisonment, nine months of which is to be served accumulatively with the base sentence and sentences imposed on other counts and as mentioned, I declare you a serious offender on this offence as well.
78 On Count 5, I convict you and sentence you to 18 months' imprisonment, to be served concurrently with other sentences.
79 On the summary charge, convicted and sentenced to seven days' imprisonment, to be served concurrently with all other sentences.
Total effective sentence
80 The total effective sentence is ten years and nine months' imprisonment.
Non-parole period
81 I impose a minimum period of eight years before parole eligibility.
Pre-sentence detention
82 I declare 253 days pre-sentence detention reckoned as served, excluding today.
Section 6AAA declaration
83 Pursuant to s.6AAA of the Sentencing Act 1991 (Vic), I declare that had you pleaded not guilty to these charges and been found guilty of them, I would have sentenced you to a total effective sentence of 13 years' and six months' imprisonment, with a non-parole period of ten years.
Ancillary orders
84 As you have been found guilty of two registrable Class 1 offences and three registrable Class 2 offences, I declare you a registrable offender and I order that you comply with reporting obligations, as set out in the Sex Offenders Registration Act, for life. My associate will now bring you a form to sign in relation to that scheme.
85 There was an ancillary order in relation to a 464ZF(2) application. Is that right, Madam Prosecutor?
86 MS KEYS: Yes, Your Honour, that's correct.
87 HER HONOUR: And in all of the - I remember, Mr Rattray, that your client consented to the making of that order.
88 MR RATTRAY: He did, Your Honour.
89
HER HONOUR: Thank you. And in any event, the seriousness of the circumstances warrant the order. I will make that order and I will note that
Mr Nelson must provide the taking of a mouth scraping, under the supervision of an authorised member of the police force and if he does not consent to the taking of a mouth scraping, then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted.
90 Madam Prosecutor, have I overlooked anything?
91 MS KEYS: Your Honour, the only thing I would raise, it's my understanding that with Commonwealth offences, a date for the commencement of that sentence needs to be provided.
92 HER HONOUR: It was my understanding that it was the opposite. But I can order the commencement of the sentence today, if I need to.
93 MR RATTRAY: Yes.
94
HER HONOUR: And so, Mr Rattray, do you have a position on that? That is certainly a matter that I can catch in the slip rule when I go back to chambers.
I have not brought the Pedley - - -
95 MR RATTRAY: I agree.
96 HER HONOUR: It needs to - - -
97 MR RATTRAY: I agree it needs to be and I agree that if Your Honour says today, it will have the same effect as Your Honour intended.
98 HER HONOUR: Yes. So in those circumstances, I will stand persuaded that in order to effect my intention of complete concurrency in relation to the sentence imposed on Count 5, that the sentence is to commence today.
99 MS KEYS: If the court pleases.
100 HER HONOUR: Are there any other matters from either of you?
101 COUNSEL: No, Your Honour.
102 HER HONOUR: Thank you very much.
103 MR RATTRAY: Just while Your Honour finalises those matters, can I approach my client?
104 HER HONOUR: Yes, by all means.
105 MR RATTRAY: Thank you.
106 HER HONOUR: You may wish to remain present in case there is any ambiguity with respect to the Sex Offenders Registration order.
107 MR RATTRAY: Certainly.
108 HER HONOUR: Thank you, I will stand down.
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