Director of Public Prosecutions v Nenna (a pseudonym)

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

Revised
Not Restricted
Suitable for Publication

CRIMINAL DIVISION

DIRECTOR OF PUBLIC PROSECUTIONS

JAMES NENNA (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE TINNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	10-18 August 2022 (Trial), 6 September 2022 (Plea)
DATE OF SENTENCE:	12 September 2022
CASE MAY BE CITED AS:	DPP v Nenna (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2022] VCC 1550

REASONS FOR SENTENCE

Catchwords: Indecent act x 1, Incest x 3. Trial. Guilty verdicts; Retrial matter; Successful conviction appeal to Court of Appeal, retrial following that decision with a jury disagreement in first re-trial in April 2022 and ultimate trial verdict at second retrial in August 2022. 15-18 year old biological child of the prisoner. Offending in 2008, 2009 and 2010. Broader context of many such acts occurring from a young age in Africa. Broader context included three pregnancies and two abortions and a miscarriage. The 3 charged acts of incest involved unprotected penile vaginal sex. Impact of COVID-19. No prior criminal history or any since. Sentence after retrial. R H McL v The Queen [2000] HCA 46; 203 CLR 452, R v Fitchett [2010] VSC 393, DPP v TY (No 2) [2009] VSCA 226; 24 VR 705

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M. Rochford and Ms T. Bolton (at Trial) Ms T. Bolton (at Plea) Ms H. Gould (at Sentence)	Office of Public Prosecutions
For the Accused	Mr C. Pearson	James Dowsley & Associates

HIS HONOUR:

James Nenna[1], on 19 August, after a brief retrial conducted almost exclusively on the pre-recorded evidence from the first trial, you were convicted by a jury of one charge of indecent act with a child under the age of 16 years of age and three charges of incest.
[1] A pseudonym
The offence of indecent act carries a 10 year maximum prison term. Incest has a maximum penalty of 25 years' imprisonment.
All of these offences were committed against your biological daughter Beatrice[2]. She was born in July 1992 in Africa.
[2] A pseudonym
The offences occurred in the three family homes where she lived with you in Australia in the years 2008, 2009 and 2010. She was 15-18 years of age. You were born in 1974 so were in your mid 30's at the time of the offending.
At the first trial before Judge Hampel in 2019, without objection, the prosecution led evidence of the persistent sexual abuse of your daughter from the time she was a young girl in Africa until she was ejected from the family home in Melbourne after she had turned 18 years of age. There was also evidence led without objection of your controlling nature with instances of physical and emotional abuse.
That same evidence was led without objection in the retrial conducted before me. The taped evidence from the first trial was relied upon and no application was made by Mr Pearson to exclude any of the evidence or to alter the way the trial proceeded. The only alteration was that you gave evidence at the retrial. Otherwise, when it came to the Jury Directions Act discussions, Mr Pearson essentially sought the same directions.
The evidence of persistent sexual abuse was relied upon both as to context and also for tendency purposes as in demonstrating that you had a sexual interest in your daughter and a preparedness to act on it.
The central issue in this case was the happening of the four charged acts. They were all disputed. So too were these other acts which were led as to context and tendency. So too the evidence touching upon your level of control and emotional and physical abuse.
Your daughter's credibility and reliability were strongly challenged by Mr Pearson.
Well, it is abundantly clear from the jury verdicts that the jury have accepted her as a witness of truth in terms of her description of the charged conduct. I must sentence in a manner consistent with the jury's verdict. Additionally, for any factual matter or finding which will aggravate the matter, I must be satisfied of that fact beyond reasonable doubt.
There was an inextricable link between the charged and uncharged conduct. The jury simply could not have doubted your daughter as to the broader context. Had they entertained any doubt at all as to the truth of her account of the broader context and the evidence touching upon your sexual interest and preparedness to act upon that in the past, it would have completely undermined her account and they would have acquitted you. I have spoken of the inextricable link between the charged conduct and the uncharged. One of many such examples is demonstrated in the lead into the conduct the subject of Charge 1.
The lead-in was of her being pregnant to you when she came to Australia as a

15 year old and disclosing to your then partner that you were responsible for that pregnancy. You were furious when you learnt of the fact of her disclosure and as a result committed the act the subject of Charge 1. The lead in was essential.
Another example is demonstrated by the second charge. The subject matter of Charge 2 related to her being pregnant to you again and the elaborate conduct thought up by you to have your daughter engage in sex with a young man named Ford[3] so that you could walk in upon them, pretend to surprise them, and the young man would then be blamed for that pregnancy. Again, that was just the essential lead in to the charged act occurring later on that very same day.
[3] A pseudonym
It is inconceivable that a jury could have entertained any doubts as to the essential lead in to either of those charges and yet convicted you of the charged act. Again, it was an essential detail that the only person who could have been responsible for any of her three pregnancies was you; that she had no other sexual partner.
I have no doubt at all that the charged acts occurred in this much broader setting of the multitude of other sexual offending against her as she described in her evidence. So sexual acts in Africa from when she was under the age of 10 and acts in Australia both before and after the charged acts. Indeed, acts surrounding those acts. I am satisfied of that beyond reasonable doubt.
I have no doubt at all that you were responsible for impregnating her on no less than three occasions and had a role to play in the two abortions, as she described to the jury. The other pregnancy resulted in a miscarriage but not before the conduct the subject of that Ford event, where, as I say, you essentially commissioned your own daughter to have unprotected sex with a young man so that he could be blamed. It is clear that the jury must have accepted the setting and not just the charged acts.
For the purposes of sentence, therefore, in my view it is consistent with the jury verdicts to sentence you on the basis that the jury did not reject that other misconduct evidence and I accept it for sentencing purposes. I have probably said far more than I needed to on this topic, for your own counsel conceded the broader context and the ability for me to act on it (see paragraph 3 of the written submissions). He made the same concession when you were previously sentenced by Judge Hampel.
I am not going to set out all of the evidence in this case. The summary of prosecution opening dated 5 September 2022 filed in this matter and marked as Exhibit A on the plea, adequately summarised the nature of the specific acts you have been found guilty of. It also sets out a summary of the context and the tendency evidence which was led. Now, all it does really is bring into a brief document in a convenient form some of the evidence led against you which has been placed before me.
It does not purport to state the full detail or be some form of agreed statement binding the Court. Your daughter gave evidence in relation to those various acts and the background and it was voluminous. I have heard her evidence twice. The acts are also described in some detail in Judge Hampel's sentencing remarks from paragraph 10-25. A pseudonym had been employed (see the case of Nenna)[4].
[4]DPP v Nenna (a pseudonym) [2019] VCC 1512 at [10] to [25]
So as to the incests, I am dealing with three acts of unprotected penile vaginal sex leading to ejaculation within your daughter. On the occasion of the conduct the subject of Charge 2, she was actually pregnant to you and you had contrived to have another man blamed for that pregnancy. That was the setting of that charged act of incest.
By way of further background, she said in her evidence that in playing a game with her cousins back in Africa, a game described as 'mama and papas' where her young cousins were playing with each other's private parts, she had said to her cousins, 'That's what my dad does to me.' She got into terrible trouble with your sister, so her aunt, and was struck by her aunt with a cane repeatedly and told never to mention this again.
She told the jury she had always been afraid of you and would never question your authority. That you had threatened to hurt or kill her if she ever told anyone. You continued to have sex with her. You impregnated her in Africa and she was pregnant with your child when she arrived in Australia as a 15 year old. An abortion was arranged. As to that first abortion, you accompanied her to the clinic and had worded her up on what to say and what not to say. She had that abortion.
She had virtually no-one else to turn to in this country. She also had virtually no understanding of how she had actually even fallen pregnant, as there had been no sexual education in Africa at all. She could not understand how she could have become pregnant when she had no boyfriend.
Your then girlfriend Ms Elizabeth Brooks, referred to as Lizzie, was the one person Beatrice disclosed the truth to. This was after the first abortion and the setting was of you putting on an act as a concerned and shamed parent. You told your daughter in Lizzie's presence how your daughter had disgraced you and let you down by getting herself pregnant to a boy in Africa. You humiliated your daughter. Of course, this was just a front. It was an act. You were later to take Beatrice aside and say that you were only acting. Your daughter then confided to Lizzie about who was actually responsible for the pregnancy and how long it had been going on.
Lizzie urged your daughter to go to the police but she was scared, as she had been threatened by you. It would appear that Lizzie told the broader family. You were enraged when you learnt that Beatrice had told anyone of your conduct. She came home from school one day and you pounced. You threatened to kill her. She apologised for making the disclosure. As I said earlier, that was the lead in to

Charge 1. You were in a rage. You told your daughter that as she had told Lizzie that you had raped her, you would now rape her ‘for real’ to show her what that was like.
You pulled out your erect penis. You kept grabbing her. She was on the floor and was apologising, saying she would not tell anyone again. She was begging you, saying she will not tell anyone again, that she was sorry. You had removed her underpants (see transcript T73 line 28 and T210 line 22). She saw and, indeed, felt your erect penis. She fought you off and ran off to the kitchen. You chased her into that room and she fell to the floor again. It ended with you standing over her telling her to look at herself and to see how much stress and disgrace she had caused the family with the news of that disclosure having travelled to relatives overseas.
Now, plainly, I am not sentencing you for the crime of attempted rape, I am sentencing you for indecent act, but that was the factual setting. Her apologising to you for having told the truth about your conduct and then being treated in this way by you, her father. From that point, she learnt to, as she described it, 'Deny, deny, deny.' As she described it, she was your first child. You had cared for her for her whole life, you had invested a lot and she was made to feel that she had betrayed you. Perverse really, when you think about it, but that is the way that she was made to feel by you.
You kept having sex with her, notwithstanding this allegation surfacing in the way I have just described. In fact, the Department of Health and Human Services investigated that first pregnancy. You kept having sex with her. You impregnated her again the following year in 2009 and then arranged for the meeting with Mr Ford for him to unwittingly take the blame for that second pregnancy. You instructed your daughter what to do.
As I said earlier, that was the lead in to Charge 2. You daughter was, it follows, pregnant at the time of that act of incest committed after Mr Ford had left the home. I am satisfied of that beyond reasonable doubt. After you committed that crime, you commented that Matthew Ford was a lot smaller than you (see T81). Your daughter had a miscarriage, so your self-serving and perverse plan did not need to be further actioned. But you continued to have sex with her.
At one point, she came back from a trip to Sydney and you accused her of sleeping with a boy in Sydney. She had not. She had to prove that she had not and that was by having sex with you. That is the subject of Charge 3. It concluded with you telling her how good she was at sex for a girl of her age (transcript p84).
Now, she fell pregnant again and in a time frame close to that charged act. There was some medical evidence dealing with the date of her last menstrual cycle

(29 April) and the termination conducted on 15 June 2010 with what was an estimated six-week gestation. It was only an estimate. I do not believe it is possible to link that actual pregnancy to the charged act, as the general evidence, as I have made plain, suggests that the charged acts were surrounded by many other acts. So acts presumably before and after the charged act which is said to have taken place between 10 and 30 April.
Maybe it was the charged act that caused the pregnancy, it may even be probable, but I cannot be satisfied of that beyond reasonable doubt. You were undoubtedly the father, of that I have no doubt at all, none. Another abortion was arranged. You went with her the night before that abortion to the clinic in East Melbourne so she knew where to go. You had instructed her as to what to say.
Finally, there is the incest committed on her 18th birthday where she was plainly very drunk. It was the very first time she had drunk alcohol. Her very first visit to a nightclub. She was obviously significantly affected by alcohol, you knew that, as was clear from her evidence and even from your own interview where you denied that sexual act but not her state of intoxication.
I said finally but, of course, the acts continued even beyond that date.
You denied all the acts and unlike the first trial where you stood mute, at each of the retrials before me you gave sworn evidence. Your evidence has been rejected by this jury.
I was requested by your counsel to give a direction to the jury as to motive to lie and that motivation boiled down to the acrimony said to exist as a result of you kicking her out of the family home in 2012. That was in a setting where you simply had taken her belongings and put them out on the nature strip. Well, this made no sense at all as there was no live dispute before the jury as to the fact that she had spoken to your sister in Africa when she was a young child and to her cousins and to her two school friends in 2011, so well prior to that point where she was told to leave the home.
There was much cross-examination as to the accounts she had given at the time of the two abortions and also things she had told the Department of Health and Human Services when they were investigating that first pregnancy. The alleged mileage in this cross-examination being the existence of a prior inconsistent statement involving her attributing the pregnancy to another. That she was not telling the medical clinics or the Department that you were the father. As if it was somehow to be expected that a person actually in her position would, in response to the question, 'Who is the father?' answer without pause or concern, 'The father is my father.' You had threatened her and you had compelled her to secrecy. You had told her what to say.
You have continued to offend, notwithstanding, that you knew of the risk of pregnancy. You would consistently ask her whether her period had arrived. As I say, you were active in relation to each of these abortions, attending on the first clinic in 2008 and playing the role of the concerned parent, having pretended prior to that visit to be the outraged father shamed by your daughter's promiscuity when denouncing your daughter in Lizzie's presence. You did not attend the second clinic in East Melbourne in 2010 but had a trial visit with her so that she knew where to go and what to say.
The need for secrecy was quite deliberately and forcefully re-enforced by you. She was fearful of you. She also had a sense of loyalty towards you. I am satisfied beyond reasonable doubt that you were a controlling and domineering figure in her life, aside from these sexual acts. She had virtually no one else to turn to.
Towards the end of her evidence, in answer to a question in cross-examination, she said the following: 'I was regarded as a slut by my father, always telling me how… my pussy was and everything' (see transcript 267).
Your counsel Mr Pearson may not have liked the word that I employed in the course of the discussions on the plea, but the fact is, you and you alone have totally warped Beatrice's childhood and adolescence.
She went to the police in 2012 following the disclosures that had been made to her pastor at the church that you each attended. You denied the acts in your lengthy interview with the police conducted in 2013. It was a pretty strange interview. There was the secretly taped Eastland conversation on 21 May 2014, several months after that police interview.
The chronology of what then took place is not entirely clear. The prosecutor told me there was apparently some difficulty in obtaining statements from the two sisters who had moved either interstate or overseas but that, it seems to me, cannot fully explain the delay. You were not charged until late 2017 and, of course, that is regrettable for all concerned. I will return later to the submission that there was a strain upon you in that period where you were uncharged.
The jury heard the taped discussion your daughter had with you at the Eastland shopping centre in 2014. There were some extremely damaging things both said and unsaid by you. Your manipulative nature is on display.
At the first trial, you were convicted of these same four charges on 25 July 2019 and sentenced by Judge Hampel in September of that year to 18 years with a non-parole period of 14 years.[5] The Court of Appeal allowed an appeal against conviction and sent the matter back for retrial and that was conducted before me in April of this year, predominantly on the pre-recorded evidence with the exception of the informant being called and also your being called to give evidence. That jury, at the first re-trial, was not able to reach a verdict. The matter was adjourned to August for the re-trial and you were then convicted, as I have said, on 18 August of this year.
[5]Nenna (a pseudonym) v The Queen [2021] VSCA 183
You had been on bail from 15 September 2021 after the Court of Appeal decision but you are now back in custody and of course you get the full benefit of the time that you have served.
Your evidence and that odd police interview account that you gave, has been comprehensively rejected by the jury.
I see no need to set out any more of the evidence which was led in support of the charges. As I say, your daughter gave evidence consistently with the way the summary of prosecution for trial set out the allegations. The plea summary (marked as Exhibit A on the plea) distils some of those matters into a convenient document but I have regard to the totality of the evidence placed before me.

The matters for which you have been convicted are no longer allegations. They are, yet again, proven offences. Your daughter is no longer a complainant. She is, once again, the victim, as she was after the first guilty verdict delivered back in 2019.
You are 48 years of age and have no prior or subsequent criminal offending. The submission made by your counsel as to your impeccable character in the past has to be really seen in light of the extended nature of your conduct targeting your own daughter. I will return to that issue later.
Your counsel, in his initial submissions to me, made it clear that the various findings made by Judge Hampel were valid findings not in any way subject to any challenge by him. He went on to submit that the fact that Her Honour had imposed that earlier sentence had no relevance at all to my sentencing task. That I could impose a lesser or greater sentence and that I was in no way fettered or in any way limited or restrained by the sentence previously imposed. It was, he submitted, completely irrelevant to my task.
I raised two matters in relation to those submissions. Firstly, my then prevailing uncertainty as to the availability of a finding that pregnancy could be linked to
Charge 3. I wanted to be addressed on that topic. Mr Pearson then opportunistically and very swiftly abandoned that concession which he had made before
Judge Hampel[6] and his concession before me that Judge Hampel's findings were all valid and not in any way challenged.
[6]DPP v Nenna (a pseudonym) [2019] VCC 1512 at [22] and [24]
As to the impact of the past sentence and it being a matter of no moment at all, I queried Mr Pearson as to whether his submission accurately reflected the law. It seemed quite wrong to me. I referred him to the line of authority from cases
R H Mcl,[7] Fitchett[8] and TY[9] and other cases which I believed applied to my task and which ran entirely counter to his submission made to me. He completely altered his submissions on that topic, describing it as his 'reformulated position'. His reformulated position relied upon those authorities I had referred him to which, frankly, he really should have been referring me to. I will come back to discuss these various matters.
[7]R H McL v The Queen [2000] HCA 46; 203 CLR 452
[8]R v Fitchett [2010] VSC 393
[9]DPP v TY (No 2) [2009] VSCA 226; 24 VR 705
Impact
Let me deal firstly though with the aspect of impact upon your daughter.
There is a lengthy impact statement from your daughter marked as Exhibit D. It was read aloud by her. I will soon move on to discuss the various matters in mitigation raised on the plea. I will be detailing the nature of your background and making judgements about your prospects of rehabilitation and the impact of prison upon you in these COVID times. I will come back to all those things, of course, but I am sentencing you for these serious crimes committed upon your daughter and I must take into account that impact. The impact has been profound.
She read that impact statement aloud. She was a child, of course, but now she is a young woman of 30 years of age and having seen and heard her read that impact statement aloud and having seen her evidence, despite your offending, she is an impressive young woman. The impact statement and the evidence that she gave as to her loyalties and the confusion and conflict arising from your acts, spells out why incest is such a serious criminal offence. It is just so terribly damaging and conflicting.
Her impact statement and her evidence spells that out eloquently. The impacts persist and they will continue deep into her life. The clock cannot just be wound back, nor your warped conduct removed from her life. It was ever present. I have that background to the four charged acts of which you have been convicted. I will not mention all of what she said in her impact statement. I take into account the impact statement and I mention just a few of the sentiments that she raises. She speaks of the impact of your crimes upon her ability to form intimate relationships. Her sense of the breach of trust and what you have taken from her. Her loss of pride and

self-esteem and self-confidence and flashbacks, not of happy family memories but of your abuse.
She has had support and counselling but has even had a sense of guilt herself. Of course, she should feel no such thing. All of this was your fault, Mr Nenna. These were your decisions to totally corrupt this relationship. She has felt suicidal, she struggles with the notion of having children herself and the risks. She has triggers. Even seeing a seemingly happy father and daughter in the community will cause her to ponder the true state of that relationship, of what is hidden. She speaks of the things one would expect from a father, which have now been lost to her, including things such as a traditional wedding or first dance.
She has trust and intimacy issues. Court has been a strain for her. She still feels haunted by your acts. She prays that you may repent but, for what it is worth, I see no signs of that emerging in this case. She hopes that one day she may be able to forgive you. She understands though that at least it was well worth her speaking out. There is some optimism in her impact statement. All is not lost and she says that your crimes will not stop her in her tracks and they have not.
It is a pretty remarkable impact statement read by an impressive young woman. That is your daughter. One whom you have treated, really, as a sexual plaything. Now, 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 and I do. But I am obliged to take into account the impact of your crimes. The impact of the charged offending has been and will continue to be quite profound.
In Mitigation
Mr Pearson conducted the plea on your behalf. He prepared a brief outline of written submissions dated 4 April and marked as Exhibit 1. He told me that that had been prepared as he awaited verdict in the first retrial. He filed an old 2019 report from a psychologist Mr Cummins, which was marked as Exhibit 2. He conceded the broader context of the relationship (see paragraph 3 of the submissions). I have dealt with that broader context in some detail.
By way either of oral or written submissions or the background set out in Mr Cummins' report, I was told about your personal and family background, including details of your educational and employment history. Mr Pearson made some submissions as to the objective gravity of the offending and matters of sentencing principle at play. He made some submissions as to your prospects of rehabilitation. He relied upon the absence of any criminal history and the aspect of delay in this case. He argued that there was the additional stress of having the matter over your head since 2013 and he took me to the circumstances of the chronology with a trial verdict in 2019, imprisonment, retrial, and then a secondary trial and now back in prison.
He conceded that this was serious offending and deserving of relatively substantial punishment with a head sentence and a non-parole period. He referred me to a range of cases that were said to illustrate the post Dalgliesh[10] sentencing landscape in this State. I note that some of those cases predated the decision in Dalgleish. For instance, the cases of Reid[11] and Cotton[12] and Dalgliesh itself is hardly demonstrative of that developing landscape which lay beyond 2017.
[10]Director of Public Prosecutions v Dalgliesh (a pseudonym) [2016] VSCA 148, [2017] HCA 41; 262 CLR 428 and [2017] VSCA 260; 271 A Crim R 1
[11]Reid v R [2014] VSCA 145
[12]Cotton v R [2015] VSCA 103
He indicated that the sentences imposed by Judge Hampel were going to be the subject of a sentence appeal alleging manifest excess. Well, I am not sitting in the Court of Appeal nor did the Court of Appeal determine that issue in any shape or form. The appeal against conviction is what succeeded. That there was or might have been an appeal ground alleging manifest excess is entirely irrelevant to my task. I will impose by own sentences as I am exercising my own sentencing discretion but will do so subject to the sense of restraint arising from the earlier sentence. That is a matter of legal principle that I am not free to ignore.
In fact, had I acted on Mr Pearson's initial submissions to me as to the complete irrelevance of the earlier sentences, I plainly would have been led into error in that respect and let me make plain, you would have done worse.
Prosecution
Ms Bolton, who was prosecuting, had little need to make any lengthy submissions, for it was accepted by your own counsel that a relatively substantial prison term was required here with a non-parole period. That much, of course, was very plain. The Crown had pointed out some of the aggravating features, including the background to the offending where there had been pregnancies and the unprotected nature of the charged acts of incest. There was a level of calculation in the surrounding circumstances to Charge 2 and obvious large impact arising from the offending.
The Crown submitted that it was not open to find to the required degree that the act the subject of Charge 3 had caused the pregnancy which was terminated in

June 2010. So that aggravating feature did not exist. This was a retreat from what they had submitted at the plea before Judge Hampel.
I will return in one moment to discuss these various submissions made on your behalf. I will turn briefly though to your background.
Background
I see no real need to set out your background in any great detail. It is set out in detail in Mr Cummins' report and is also described to some extent in the written outline.
You were born on a date in 1974. You provided two dates of birth on Tuesday of last week but nothing hangs on that at all. So March or December 1974. You did say though that you were 48 and so did your counsel, so I presume the March date is the accurate one. As I say though, nothing hangs on that issue. You were born and raised in Liberia and had what was described by your counsel as a largely uneventful background (see paragraph 8). You completed high school and then went on and did some post-secondary studies.
As was plain from the evidence in the trial from your daughter Beatrice, there was much movement around Africa and that was driven by a conflicts that then raging on that continent. So what is described as uneventful, in Africa it may be pretty eventful when viewed through the prism of life in this country. There was reference to life in refugee camps, for instance. You moved to the Ivory Coast and then to Guinea before arriving in Australia in 2008. I asked directly and was told that you are definitely an Australian Citizen, so the spectre of deportation does not hover over this case.
In Australia you have worked in a variety of mainly menial occupations and have continued to study and obtain the tertiary qualifications I was told about on the plea. You have done both paid and voluntary work over the course of your life. You have a number of children. It is a most complex chronology, with a pair of sisters, for instances, each having a child with you. You also have two young children from your current relationship; I believe an eight-year-old daughter and five-year-old son.
You, unlike many before the courts, have no issues with drugs nor any sizeable mental health issues at all. You are now back in custody and I accept that it must be difficult to be out of custody, then in, then out and now back into custody and waiting throughout that process to have a sense of the true lay of the land. There is certainly the additional stress of having the matter pending from 2017 when the charges were laid to now, with that tangled chronology I have spoken of. I do not accept that there was any enormous stress felt by you from 2013 when you were first interviewed, until the date of being charged in November 2017.
You denied the offences, as was your right, in the course of the interview and then got on with your life in the expectation you would be believed and would not be charged. From my observations of you in the interview and whilst giving evidence, you are supremely confident in your own believability. You should not be. You were a dreadful witness.
I take into account your background as far as I am able to. It was not a stable one in those later years prior to leaving Africa and, no doubt, you saw things you would rather not have seen but, of course, it cannot reduce your culpability for this offending, nor did Mr Pearson suggest there was any reduction in culpability here.
I see no utility in setting out slabs of Mr Cummins' report. It is mostly relied upon as demonstrating the absence of any serious mental health issues or drug issues which might impede your future rehabilitation. Also, the risk assessment that rates you as at least a low moderate risk of reoffending sexually. Mr Cummins though comments on the problematic aspect of such a risk assessment in the circumstances of this case (see paragraph 43). I take into account the report. It has some useful background. I am prepared to accept that risk assessment. This is not some illusory risk. You are still, relatively speaking, a young enough man. You have children, you may have others. You may form relationships with women who have children or who might bear your children. You have done that on a number of occasions in the past. You are a highly persuasive individual. You are said to be quite charming. That was the view of one of Beatrice's friends who gave evidence to that effect in the course of the trial.
Yet, of course, you have conducted yourself entirely inappropriately with your daughter in secret over very many years and in the face of many mishaps and risks posed to you. You deterred or dissuaded her from disclosing your conduct by threats and playing on her sense of loyalty to you, her father. Not even pregnancies brought you to your senses. It is true that there is no criminal history. You do fall to be sentenced as a person with no prior criminal record at all nor anything occurring in the sizable period since this offending. I do not ignore that fact. However, there is nothing that unusual about this sort of offence being committed by someone with no criminal history.
The suggestion made by your counsel of your having, what he described as an ‘impeccable character’, runs into a pretty sizeable roadblock or obstacle; it is that presented by the background evidence and the charged conduct. It spans very many years. This conduct was not isolated. You presented as a person with an impeccable character, but in secret, of course, you were committing these serious acts. You chose to do that. There is no reduction in your culpability. No indication of your having anything other than a complete understanding of what you were doing, the impact of what you were doing and how serious these crimes were. There is no disinhibition brought about by drugs or alcohol or from any mental health condition in play. Your offending then remains completely unexplained, but it is blindingly obvious that you had an attraction to having sex with a child, your child, and not for some brief time frame.
COVID-19
Let me deal with the impact of COVID-19 upon your time in prison. I need no convincing that the COVID-19 pandemic has increased the burden felt by prisoners. You went to prison in July 2019, so well before the pandemic. You were sentenced in September of that year and remained locked up until your release on bail on

15 September 2021. You are now back in prison. So you have been exposed to a decent period as a prisoner during the pandemic. Plainly enough, of course, that did not feature in Judge Hampel's sentence for it could not. The pandemic had not even arrived at the time she finalised the matter.
The pandemic has supervened and that has had ramifications for you (see

paragraph 16-17 of the written submissions). Prison has been a more stressful place owing to COVID-19, of that I have no doubt. For a sizable period in which you have been held, you would not have had access to visits or the full range of courses. There would have been some periods of quarantine or lockdown. You were released on bail then in September 2021. You went back into custody about a month ago and your counsel concedes that COVID is less of an issue now for prisoners.
It really is impossible for me to know what lies ahead for prisoners on the COVID-19 front. Things have looked up since about March of this year when prison visits resumed. Those whose job it is to run the prisons will be able to reflect on the impact of any past and ongoing limitations on a case-by-case basis. They will have the power to address any increased burden in your actual case, past or future, by way of conferring Emergency Management Days. I cannot know if that will take place or not. I certainly must not proceed on the assumption that it will. I am prohibited from that sort of speculation.
It seems clear to me though that we are not entirely beyond the impacts of this virus. There have been some rolling lockdowns and quarantines in prisons. That sort of thing has been brought to my attention over the last handful of months. It seems possible, if not probable, that there might be some ongoing prison issues connected to COVID-19 in the next several months which would pose uncertainties and some difficulties to prisoners and I take that into account as well. Of course, I take into account the past increased burden in the time that you had been held during the pandemic until release on bail in September 2021.
Rehabilitation
I turn now then to your prospects of rehabilitation. You are 48 years of age with no prior convictions at all nor anything since. As I said a moment ago, I do not ignore that fact. Nor do I ignore your demonstrated work ethic or the acquisition of the qualifications that I was told about. You are obviously an intelligent man.
I am dealing with you though for events occurring in 2008, 2009 and 2010. Serious sexual crimes, and as was conceded, I am dealing with those four crimes but knowing that those acts were not themselves isolated or occurring on a single day and also in the knowledge that there were sexual acts committed upon your daughter in other time frames and countries. So whilst you have that absence of any prior or subsequent criminal history, it can hardly be said the offending was out of character. It was not isolated. It was not out of character at the time. It was part of your life for many years. That is, the complete subversion of your daughter to your sexual will. That is why the use of the term 'impeccable' to describe your past character was a bit jarring to my ears. I take it, really, that your counsel was highlighting the absence of any criminality alleged against you and the outward signs of toil and good character.
You deny that you had any sexual interest in your daughter. You deny the offending or any of the uncharged conduct. Well, it happened, Mr Nenna. Your conduct was serious and persistent. It plainly was not transitory in nature. Your conduct speaks for itself. I do not know precisely what caused it or what motivated you. The nature of your conduct, the duration of it and the persistence in the face of the obvious

wake-up calls of disclosure to Lizzie and pregnancy and the Department of Health and Human Services investigation spells out a very strong drive that existed to offend against a child, your child.
It is not, in any way, explained by Mr Cummins. He does his best by way of a risk assessment but one where you deny any of the acts. He factors in the aspects of escalation of offending and physical coercion, breach of trust, abuse of power and physical coercion (see paragraph 28). In Mr Cummins' view, you are likely to have difficulty in any offence specific treatment (see paragraph 32). You refused to state whether or not you would agree to participate in offence specific treatment. On the basis of your general comments and demeanour, Mr Cummins anticipated that you would not do so willingly.

Mr Pearson says that is not your currently held position. You may well have told Mr Pearson that, but I also have what you told Mr Cummins and his opinion on that score. The fact is, you still are adamant the acts did not take place. There is no explanation from Mr Cummins for any long-term aberrant sexual conduct by a man who denies it all and a person who is said, by him, to present at least a low-moderate risk of future sexual offending.
One would hope that the time you have spent already in custody and the significant time you will spend in custody in the future would serve to deter you to a degree. One would also hope that you would be compelled to do some counselling or the sexual offenders' program. Mr Pearson raised that in his submissions to me. The problem is, of course, that your denial of the offending will pose something of an impediment to any success in that regard, even if you happen to agree to such a program. I certainly am left with no sense at all that you will alter your position and admit the crimes at any point. It is possible that counselling and treatment might reduce your risk but without any acknowledgment of any wrongdoing it is hard to be too optimistic as to the impact of any treatment.
It is difficult for me to assess your risk at this point and into the future. It is clearly not illusory. Mr Cummins is not suggesting that it is. It is at least low-moderate. I expect you will, in due course, have contact with your own children. But given the dimensions of the sentence soon to be imposed, they will be a good deal older. Your youngest daughter may well be an adult. You may form new relationships and have more children. I do not know how that will pan out but that is what you have done on a number of occasions over the years. You deny the offending and hence you have no recognition of, or any insight into, any serious issues or any need to seek treatment or to, in any way, alter your ways.
You will be required to report any contact with children under the

Sex Offender Registration Act. It is hard not to be guarded as to your future prospects. I am prepared to find that you have some realistic prospects of rehabilitation. Those prospects would no doubt improve were you to accept your crimes, as treatment would then be far more effective.
I am dealing with you many years after these crimes. That is common. I do not completely accept the submission at paragraph 11 of the written submissions as to the additional stress generated from the date of interview.
You wanted these allegations to never see the light of day. You very directly discouraged your daughter from reporting your conduct. You threatened to hurt her or others and played on her sense of loyalty to you. You schooled her in what to say to the doctors or the Department of Health and Human Services. You denied the offending to the police in 2013, as was your right, and then got on with your life. Just a life without your eldest daughter in it until you were then charged by the police.
You displayed no great anxiety in the 2014 Eastland conversation. I am not satisfied on the balance of probabilities of the existence of any great anxiety or stress in the period between your interview in 2013 and the point when you were then formally charged in 2017. I do not ignore the submission that has been made but I give that period only quite modest weight.
The gap between being charged in 2017 and now is in a different position. From 2017 to now, this matter has been awaiting finality. You had been charged in late 2017. There has been some delay brought about by the trial process and the chronology that I have discussed. So awaiting trial, verdict, sentence, appeal, retrial, hung jury, second retrial with verdict again, this time over three years after the first verdict. So you were in and out of prison and now you are back in. I am sure it is harder than just going to prison on one occasion. I have regard to that. It could not be easy to live your life without any sort of certainty in that sort of setting. I have regard to both limbs of delay for that later period from 2017- 2022 in that there is the stress of having the matter over your head and the fact that, in that period, you have remained out of trouble.
Delay more generally though is not at all unusual in this sort of matter. It is a product of the nature of the crime, the familial link, and of your counselling secrecy and issuing threats deterring disclosure. The fact that much time has passed since the offending was committed against your daughter is irrelevant to my assessment of the objective gravity and of the extent of your culpability.
The Offences
I turn back then to the offences. I see no need to set out the details of the acts you have been convicted of. The pre-recorded evidence played to the jury was very detailed and was compelling. This was your daughter and she had almost no one else to turn to, that much was plain. She was a person to whom you had a positive duty and an obligation to protect. You had a moral and a legal duty and it just meant nothing to you. You warped her life. You used her as a sexual plaything and you totally betrayed that trust and perverted that relationship for many years. The impact has been profound.
You kept offending, despite pregnancies, despite abortions, despite the notification to the Department of Health and Human Services, despite the disclosure to Lizzie. You kept engaging in unprotected sex with her. You threatened and dominated her completely. As I have said, the setting for Charge 1, indecent act, was your anger at her truthfully disclosing your conduct to Lizzie and that detail leaking out. You threatened to rape her and then acted in the way described. Charge 2 was full penetrative penile vaginal sex to ejaculation a short time after she had followed through with the act you had commissioned for her to engage in with Mr Ford. An act to lay the blame for the pregnancy that you had caused at the feet of another. What incredible, perverted conduct. It follows, and I am satisfied of this beyond reasonable doubt, she was pregnant at the time of the act, the subject of Charge 2 and known by you to be pregnant when you committed incest upon her.
An act where you engaged in discussions about the sex that she had had moments before with Ford and said you were bigger than him. The act after the Sydney trip on the pretext of examining her to see if she had been having sex with another and comments to her about how good she was at sex for a girl of her age. Perverse, warped conduct.
I have already mentioned that I differ from Her Honour as to whether that act led to pregnancy. Maybe it did, maybe it did not. The nature of the evidence was that the charged acts were surrounded by many other similar acts. That was the nature of the background. So I am not satisfied to the required degree that the charged act did in fact lead to pregnancy. So that feature of aggravation is not established before me.
Finally, there is the act when she was drunk on that first occasion that she had gone out to a night club with you. The first time she had drunk alcohol. I am not suggesting you set out to cause that state. Unquestionably though, she was extremely drunk and vulnerable. That is not disputed.
Sexual offences against children have always been viewed seriously by the courts. She was a child for all of these acts, bar Charge 4, but of course for that act, she was still ‘your child’. She was your daughter and one who had been conditioned to these acts over the years. The crime of incest has built into it, by virtue of the increased maximum penalty, the aggravation posed by the family relationship. That is why it has a 25-year maximum prison term. So those things really cannot be doubly counted and treated as an aggravating features of the crime in relation to Charges 2 to 4. The crime and the maximum penalty recognise those facts.
The indecent act is however quite different. Not every indecent act occurs in a setting of breach of trust. This one did and that breach of trust was significant. You were her father. She should have been safe and she was not. You were in a rage and you threatening to rape her in her own house and removed your erect penis and approached her as she fell to the ground. You pulled down her underpants and your penis contacted her. All of this because she had told the truth about your conduct. It is a serious example of indecent act.
The background to all this offending was placed before the jury. Well, the circumstances of an offence do not commence and conclude with the proven elements of that offence. Uncharged conduct may be treated as an indicator of increased moral culpability.
Now, these are not representative or rolled up or course of conduct charges. I am not sentencing you for all that you have done to your daughter over the years as one would do in a course of conduct or even a rolled up charge. I have these four discrete acts. These four charges, each of them with circumstances of aggravation particular to that given act, but they must be seen and your conduct and culpability assessed, as against the broader background placed before me.
For instance, the threats not to disclose are germane to my task. The fact that she was humiliated by you and deterred from complaining. The fact that she had virtually no other supports. The fact that she had fallen pregnant on a number of occasions and you have still committed the charged acts. You were fixed with an appreciation and an insight into the seriousness of your charged conduct. The fact that you had committed the charged acts notwithstanding the investigation by the Department of Health and Human Services and pregnancy and abortion. These things all go to a proper assessment of your criminality in committing the charged acts that I am sentencing you for. The culpability here, your culpability, is very high. There is no reduction in moral culpability at all. None.
Purposes
I must take into account the maximum penalties. I must have regard to the nature and the gravity of offending. I must have regard to the impact of your crimes. I have to also consider a number of purposes of sentencing. Rehabilitation is one of the purposes of sentencing, I do not ignore that purpose, however, I am quite guarded as to those prospects in this case for the reasons I have announced to date.
I must take into account the other purposes of sentencing. They include deterrence, both specific and general, protection of the community, denunciation and punishment. You must be punished justly and proportionately. Punishment is an important purpose of sentencing for these sorts of crimes.
I must also denounce your conduct. That is also important here. This sexual conduct in relation to your daughter must be strongly and roundly denounced. I do denounce it. You should be ashamed of yourself. Regrettably, you are not. You feel no shame, you feel no guilt at all. None. You never have and I doubt if you ever will.
I have mentioned the importance of deterrence. I must consider the need to deter you from offending in the future. That principle, which is known to the law as specific deterrence, has a role to play here owing to the nature of this offending and my views about your future prospects and the risk that your present. As I have said, this was not isolated conduct. There is no explanation for it at all. There is your complete lack of acceptance of any wrongdoing and, hence, of course, there is no desire to atone for your crimes or even reflect upon the serious error of your ways and the need for any change. I must seek to deter you. That is pretty obvious. No doubt though, there would be greater emphasis on that sentencing purpose, had there been some relevant history of similar offending, either in the past or subsequently. Well, of course, there is not.
I have also mentioned the notion of general deterrence. This principle relates to the need to deter other offenders. It is an important purpose of sentencing for offending of this nature. This court must send a loud message to other individuals in the community who might be minded to commit these sorts of serious sexual offences. Offences such as yours must be actively discouraged by the sentences imposed in the courts. A loud message must be sent to those who may consider engaging in the sort of conduct that you engaged in. General deterrence is an important sentencing purpose here.
I must also seek to protect the community from you. In fact, community protection is the principal purpose of sentencing for the matters where you fall to be sentenced as a serious sexual offender.
Current Sentencing Practice
I must and do take into account current sentencing practices. They are only one of a large range of matters which I must take into account. They are not a controlling factor.
I have looked at the Sentencing Advisory Council Snapshots No. 242 of August 2020 relating to the crime of incest and No. 258 of 2021 relating to the crime of indecent act. I have also looked at the more up to date online statistics for each crime. That is important.
There is much case law spelling out the inherent limitations of statistical material.
As to the incest snapshot, there are reasons to exhibit significant caution when looking at that document over and above the usual inherent difficulties posed by statistical material. Those statistics are drawn from sentences passed from 2014-15 to 2018-19, ending 30 June 2019, and the snapshot itself at Endnote 4 towards the back of that document speaks of the ramifications of the case of Dalgliesh. It signals a note of caution in relation to statistics. Much of that data would of course predate that decision and some would even relate to the period where the notion of a sentencing ‘uplift’ was still in currency in this State prior to the High Court judgement in Dalgliesh. Further of course, some, if not much of the data, would relate to matters where there has been a guilty plea.
Well, the sentencing practices for the crime of incest have undergone very significant changes in this State owing to the strong observations made in the cases of Dalgliesh. I say 'cases' as there were strong statements, firstly, in the Court of Appeal in 2016[13] in this State and that decision then went on to the High Court, a decision more concerned with the role of current sentencing practice. The case was then remitted back to the Court of Appeal, where again strong statements were made in 2017 by that Court. It is that final decision which was referred to by your counsel in his list of six cases provided to me. I note, by the way, that Dalgliesh pleaded guilty.
[13]DPP v Dalgliesh (a pseudonym) [2016] VSCA 148
The fact is, the crime of incest has always been viewed very seriously by the Parliament and by the Courts. In the decision of RBN[14] 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.'
[14]RBN v The Queen [2011] VSCA 261
There have been many cases from the Court of Appeal re-stating or clarifying those very principles. Many of those cases are, in fact, referred to in the remitted hearing in the case of Dalgleish. Cases, for instance, of Sposito[15], Talbot [16], KHB.[17] In fact, each one of the cases referred to by your own counsel in his chart could be added onto that list where there have been pronouncements about the seriousness of the crime of incest.
[15](Unreported, Supreme Court of Victoria Court of Appeal, Marks, Hampel and McDonald JJA, 8 June 1993)
[16]Talbot v R [2016] VSCA 218
[17]R v KHB [2004] VSCA 219
The Dalgliesh decisions of the Victorian Court of Appeal provide clear pronouncements as to the seriousness of the crime of incest. That first decision in Dalgleish dealt with the misconception that they suggested the courts had seemingly developed as to crimes of incest not really being crimes of violence.

The Court of Appeal stated that sexual penetration of a child is, by its very nature, an act of violence.
They 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 the age of 18, the recurrent features being extreme invasion of the victim's person, exploitation of a vulnerable child, violation of societal norms,

long-term and severe impact, serious breaches of trust, and the undermining of familial roots of society.
These features, they said were common in incest occurring across the range of seriousness, but the Court of Appeal went on to say that the factors distinguishing worst-case offending from so-called mid-range offending was the nature and the extent of the offending conduct, its frequency and duration and the circumstances in which it occurs. Well, the High Court in Dalgleish, discussed the ramifications of worst-case offending in terms of the maximum penalty. That built upon their earlier discussion of worst case offending in the case of Kilic.[18]
[18]R v Kilic [2016] HCA 48; 259 CLR 256
The Court of Appeal in the original Dalgleish decision concluded that the sentences imposed in the past had devalued the objective gravity of the offence as informed by the egregious breaches of trust and the important consequences for victims. Now, the Court of Appeal did not intervene in that particular case owing, they said, to the need to pay regard to current sentencing practices and the restraints said to arise from that requirement. The High Court corrected that decision and remitted it back to the Court of Appeal which then significantly increased the sentence in Dalgleish. It follows that pre-Dalgliesh decisions or sentences are of very little weight indeed.So too any of the statistics which predate Dalgliesh.
There have also been strong statements in many cases since, including the case of Trangle[19] and Boxer[20]. In fact, your counsel referred me to each of those decisions. I note that two of the other cases cited by Mr Pearson in his collection of six cases are pre-Dalgliesh, as I have mentioned earlier. Two, of course, were guilty pleas.
[19]Trangle v R [2021] VSCA 210
[20] Boxer (a pseudonym) v The Queen [2021] VSCA 300
The prosecutor referred me to three examples of sentences imposed at first instance in this court. Two of those were sentences I imposed myself. There are no strictly comparable cases and I seriously wonder as to the utility of referring to cases from a single judge of this court. Statements of principle are far more important, it seems to me. In fact, none of the cases to which I have been referred by either side are on all fours. They never are. In fact, in my experience, there is very often an aspect of cherry picking of cases. I have looked at all the cases to which I have been referred.
The fact is, one always has to be careful looking at other cases. Every case is to be dealt with on its own facts. Some cases involve a single isolated act, some involve a representative charge, some involve multiple victims. Some involve a course of conduct offence where the offender falls to be sentenced in a manner to reflect the totality of the offending constituting that course of conduct. Well, that is not the position here. I am dealing with three charges of incest and one of indecent act, both committed amidst that broader setting of other sexual abuse.
No amount of looking at statistics or other sentencing outcomes in other cases will provide the answer to the correct exercise of my sentencing discretion in your case. Each case is very different, so too every offender, and, of course, what I must do is exercise my sentencing discretion in this case. There is also no such thing as one correct sentence.

I have mentioned already the aggravating features. The offences in this country are the only ones the subject of my sentences and they all occurred in a setting where she was very much dependent on you. There were threats and these twisted appeals to her sense of duty and loyalty to you. Each of the offences had that much broader context of other sexual misconduct, so they were not isolated. Each charged incest involved full unprotected penile vaginal intercourse by a man who knew of the risks of pregnancy. You had previously impregnated her. You had her go through abortions and ensured she took steps to protect you and kept silent as to your role. You had threatened her. You continued to engage in unprotected intercourse with your daughter, notwithstanding pregnancies and even that Department of Health and Human Services interview and investigation after the first abortion when she was 15.
She was actually pregnant at the time of the second charge. Your conduct surrounding that offence, that is, of commissioning your daughter to engage in an unprotected sexual act with Ford to shield your own misconduct, was simply perverse and perverted. It was a wicked setting. You had no moral compass.
The impact here has been profound. The three incests are, in my view, serious examples of the crime of incest. Your culpability is very high indeed.
In the case of the indecent act, again, the statistical material is of virtually no value. This charge related to your anger at her truthful disclosure to Lizzie. That anger then led into the conduct; threats to rape her, the removal of her underpants, your erect penis being removed from your clothes and an approach to her as she was on the ground. It was a serious example of indecent act in those circumstances. As I mentioned, unlike the incest where the breach of trust is inbuilt into the offence, indecent act has no such in-built factor. It can be committed without any breach of trust at all. Here there was a serious breach of trust and that is a sizeable feature of aggravation in relation to that offence. The victim was your daughter, offended against in her home, a place where she should have been safe, by a person who had a positive duty to ensure her safety and who did quite otherwise.
I have also looked at the relevant cases listed in the sections of the

Judicial College of Victoria Sentencing Manual for incest and for indecent act. As I have said, I must take into account the maximum penalties.
You do not fall to be sentenced under the Standard sentence scheme or any mandatory sentencing scheme at all. Those schemes have no application to my sentencing task, given the commission date of this offending. The increase of sentence spoken of in the Dalgleish line of cases, plainly does apply to my task.
I have mentioned statistics and the inherent limitations of that sort of material. Statistics tell me nothing about the detail of those crimes represented in that data. Nothing about the matters in mitigation or aggravation. Many of the cases upon which the statistics are based would have been guilty pleas and many of those would have pre-dated Dalgliesh, in any event. Many of the sentences I have looked at involved a guilty plea and one where there was a finding of remorse. That is worth a great deal in all cases, but more so still in cases involving sexual assaults and more so still in the case of incest, in that it spares a person, a child, grown up or otherwise, from the torturous and conflicting experience of testifying against their own parent.
It was your right to run a trial, as you have, but having done so, you do not have at your disposal the very sizeable benefits of a guilty plea, especially one made in the course of the global pandemic and one accompanied by actual and genuine remorse. There is no remorse at all in this cases.
At the end of the day, I must deal with you for your crimes, taking into account the matters in mitigation and aggravation in your case and the statistics provide no answer to my task at all. Nor, for that matter do these other cases that I have looked at. I have looked at the case of Boxer to which I was referred by Mr Pearson. That case was selected no doubt because of the use of the term 'outlier' to describe the sentences imposed at first instance.[21] By the way, Boxer had some context evidence and background evidence but not pregnancy. He had a disadvantaged background and allowance was made for limbs 5 and 6 of Verdins, owing to his schizophrenia.
[21] Ibid at [49]
I had cause to look at that case earlier in the year when I was referred to it. I said then and repeat, it really struck me as quite strange to see an argument before the Court of Appeal based in such large part on what the statistics disclosed. In that case, reference was made by the appellant before the Court of Appeal to Snapshot No242, the very Snapshot I have referred to, and the fact that only one offender out of 109 offenders received a sentence of greater than 10 years. Hence, the argument in that case was that the sentences imposed in that case were significantly above the median or mean. There was an argument drawing some strength from the claim that the result was a statistical outlier.
One that was not really grappling with the Dalgleish increase that had not been reflected in that sentencing Snapshot, given the date of the data upon which that Snapshot had been compiled. An issue which, as I have said earlier, was actually mentioned in the endnote to that very document. As I have said, the cut-off for that data was 30 June 2019.
In fact, the more up to date online statistics put paid to that description of the result being an outlier. As is clear from the online data (July 1, 2016 - 30 June 2021), there was already a much higher frequency of sentences above 10 years imposed for incest. The sorts of increases which would not have been reflected in that more dated sentencing snapshot but which were quite inevitable given the decisions in Dalgleish. Now it must be said the standard sentence scheme, which does not apply to my task, may have in some way contributed to that rise but the extent of that contribution is impossible to discern.
The fact is, whether a sentence is over or under the median or mean says nothing at all about whether the sentence is appropriate or not. Nothing. Those terms are statistical terms. I am passing sentence as a judge, not a statistician. With all due respect to the Court of Appeal, the fact that there have been only one case out of 109 with a sentence of greater than 10 years, might surely raise questions about the adequacy of sentencing practice and the continued devaluing by the courts of the seriousness of the crime of incest. The very things spelt out so directly and so forcefully in Dalgleish itself, which had also considered in great detail past cases and the statistics and what they disclosed, which was a lack of sentences above a certain band, which the Court of Appeal said simply could not be right, as a matter of law.
The crime of incest is punishable by a maximum sentence of 25 years. There have been horrendous examples of it which seemingly have not been adequately punished, no doubt, an error in approach driven in the past by such an unhealthy reliance on current sentencing practice and this style of statistical analysis deployed either at first instance or on appeal.
In 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 nothing wrong with the sentence imposed in the court below. See for instance, a case not involving incest, the case of Gorladenchearau.[22]
[22]Gorladenchearau v The Queen [2011] VSCA 432; 34 VR 149 at [49]
It is clear from the Dalgliesh line of cases 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. That they in fact had become a controlling factor. Well, they are not.
Here Mr Pearson points to sentences imposed in other cases, be it Boxer or Harlow[23] or Trangle, and relies upon the sentences imposed in those other cases, almost as though they represent some theoretical ceiling. They do not. The maximum penalty for incest is 25 years. If 10 or 10-and-a-half years represented the highest sentence imposed for the very worst example of incest, and it no longer does by the way, well, it would simply run counter to all that was said in Dalgliesh as to the expectation of sentences being spread over a much large band, given the maximum penalty in play. It would simply demonstrate the continued devaluing by the Courts of the objective seriousness of the crime of incest and the continued excessive and undue weight given to current sentencing practice, the very things spoken of so directly in the Dalgleish line of cases.
[23]Harlow v The Queen [2017] VSCA 234 (“Harlow”)
My obligation is to pass an appropriate sentence, taking into account a large range of matters, including sentencing practice. I will apply the law consistently with the statements of principle made in the Dalgliesh cases in both the High Court and our Court of Appeal.
Current sentencing practice is not a controlling factor and past sentencing practices were plainly quite wrong. So much is plain from this line of authority.
One can probably always construct a more serious example of a crime. Crimes have differing aggravating features. One can almost always envisage a worse case of any crime, including crimes of incest or indecent act. That is not the best way to judge the seriousness of the actual crimes before the Court. The absence of some aggravating features says very little indeed about the seriousness of the actual offence before the court, especially where the crimes before the court have, as these crimes do, their own aggravating features present (see Harlow).
Incest is an inherently serious crime. So too is indecent act with a child. Viewed objectively, this was plainly offending at a high level of seriousness for the reasons I have announced. I do not believe Mr Pearson took issue with that characterisation.
My sentencing task follows on from a trial, so my task does not have some of the very powerful mitigatory factors that often enough exist when a person has pleaded guilty.
Past trial and sentence
I do have to exercise my sentencing discretion in relation to your serious crimes in a setting where there has been a previous trial and a sentence and then a successful appeal against conviction. Despite the original submission made by your counsel, I am not free to just disregard or to ignore that past sentences imposed by another judge. The case law discloses that an earlier sentence has an extremely strong impact in relation to a judge sentencing following a retrial, as I am. That is probably an understatement (see the cases of RHMcL, Fitchett and also TY).
I am actually required to give that previous sentence strong regard, given the policy considerations spelt out in those decisions and many others for that matter. It was not your fault that the trial miscarried. Had it not, you would have faced the head sentence and non-parole period that had been imposed by Her Honour; 18 years with a non-parole period of 14 years. To increase the sentence upon a retrial in such a setting could easily give the appearance to you or to others of some level of retribution or punishment for the bringing of the appeal. If the raising of a sentence on a retrial became commonplace, it might even discourage appeals, and that is judged to be against the public interest, as rights of appeal are an important means of preventing the perpetuation of error in criminal trials.
Whilst it is true that I am not strictly prohibited from imposing a greater sentence, there are these very powerful policy considerations which underpin those many cases to which I have referred, which suggest that the previous sentence presents as something of an upper ceiling or limit that really should not be exceeded. That the circumstances in which the retrial judge, so someone in my position, might go beyond the earlier head sentence or non-parole period, are very rare indeed.
Well, I am driven by the restraint imposed by those cases to which I have referred not to exceed the previous head sentence and non-parole period. But for those principles, you would likely have done worse. However, I am not going to increase the head sentence or non-parole period.
Now, I am not engaged in a process of picking apart or analysing the previous judge's sentence. I am exercising my own sentencing discretion but, as I say, it is restrained or fettered to some extent in the manner I have discussed. Applying that case law as a matter of fairness, you ought not do worse by way of overall outcome or

non-parole period. As I say, you got 18 years with a 14 year non-parole period.
I want to make it very clear, I am not treating Her Honour's sentence as some starting point. I am not engaging in that style of two-stage sentencing. I am exercising my own sentencing discretion but in a setting where I have that theoretical ceiling. In exercising my own discretion, I am going to impose a lesser head sentence and

non-parole period. I have the chronology of proceedings which I have spoken of and the fact that you have already served a portion of the sentence affected by the global pandemic and this continues to a lesser degree into the future. So there are matters in mitigation now which did not exist at the time you were previously sentenced.
Her Honour took a particular view of Charge 3 with aggravating features, which the Crown submit before me cannot be established to the requisite degree. I have to make my own mind up as to the most serious of the crimes to be the base sentence, the duration of the individual sentences to be imposed and the extent of concurrency as between individual sentences. None of those things are driven by those earlier sentences that had been imposed but, as I have said, the total effective sentence and the non-parole period previously imposed, operate upon me as a matter of restraint in terms of those totals.
Totality
I take into account the principle of totality of sentence and I have engaged in a last look at the sentences imposed by this court and the total effect of them in endeavouring to guard against the imposition of a crushing sentence upon you and to ensure that the overall effect is commensurate with your overall criminality. Your criminality was very high.
I have the serious offender provisions of the Sentencing Act which come into play from the point of the third sentence. The ramifications are that I may impose a disproportionate sentence to achieve that goal, pursuant to s6D(b). I certainly will not be doing that here.
As I said earlier, the second ramification is that I am required by those provisions to treat the protection of the community as the principal purpose of sentencing for any offence where you fall to be sentenced as a serious sexual offender. I cannot ignore that provision.
In addition, in the absence of a direction otherwise, the sentences imposed from Charge 3 would be served cumulatively upon each other, as the presumption of concurrency is deliberately removed. Well, that is so, but totality, though modified, is still an important consideration. I do not ignore those serious sexual offender provisions but what sentence is required to protect the community necessarily depends upon my assessment of the risks that you present (see RNT[24]). I have commented on the level of risk earlier in these reasons.
[24]R v RNT [2009] VSCA 137 at [16]
As to these four charges, I am not dealing with a tightly grouped set of acts occurring on a single day where sizeable currency would be warranted, if not demanded. This is not some single criminal episode. I have four separate acts on differing days, indeed, differing years on occasion. One in 2008, one in 2009 and two acts in 2010. Each act, no doubt, plays a role in the profound impact spoken of by your daughter. They are after all the acts, out of so many others, that she can adequately particularise and that is no doubt due to the way they stand out in her recollection and that fact is very understandable when I examine the setting of each of these charged acts. They were each serious separate criminal acts, no doubt each having a role to play in the overall impact caused here.
Sending a person to prison is always a disposition of last resort. Well, of course, there is no issue here; I must do that. Your counsel concedes I must impose terms of imprisonment with some level of cumulation and arrive at a relatively substantial head sentence and then fix a non-parole period.
Sentence
I move now then to pass sentence. I am sorry I have taken so long to get to this point. I am going to sentence on Charge 2 first, as I judge it to be the most serious of the crimes. It will be the base sentence. There was the wicked conduct surrounding your sexual act, with that Ford arrangement in play and your daughter was actually pregnant at the time of your sexual act the subject of this charge of incest. So I will sentence on that matter first.
·   On Charge 2 incest you are convicted and sentenced to 10 ½ years' imprisonment.
·   I now move back to Charge 1. That is the charge of indecent act and on that charge I convict and sentence you to three years 10 months' imprisonment.
From this point you fall now to be sentenced as a serious sexual offender.
·   On Charge 3, incest, you are convicted and sentenced to nine-and-a-half years' imprisonment.
·   On Charge 4, incest, I convict and sentence you to nine-and-a-half years' imprisonment as well.
Base
The base sentence is therefore the 10-and-a-half years imposed on Charge 2.
Cumulation
I direct that 18 months of the sentence imposed on Charge 1 will be served cumulatively, that is, on top of the base and other part concurrent sentences.
Extent to which I otherwise direct concurrency, s6E
I now must direct the extent of concurrency of those matters where you are sentenced as a serious sexual offender.
I direct that
· seven-and-a-half years of the sentence imposed on Charge 3 and
· seven-and-a-half years of the sentence imposed on Charge 4
is be served concurrently upon the base sentence and the other part concurrent sentence.
It follows that under s6E of the Sentencing Act, I otherwise direct concurrency to that extent. You are probably losing track of or having difficulty following this. Let me explain it.
It is my intention then that there be that additional 48 months cumulation on top of the existing 10-and-a-half year base sentence imposed on Charge 2 and the

18 months cumulation imposed on Charge 1.
Total Effective Sentence
These orders result in a total effective sentence of 16 years' imprisonment.
Non-Parole Period
I direct that you serve a period of 12 years before becoming eligible for release on parole.
Section 18 - Pre-Sentence Detention
You have spent 808 days in custody in relation to this matter. That time is declared as having been served pursuant to s18 of the Sentencing Act.
Serious Sexual Offender
I have sentenced you as a serious sexual offender on Charges 3 and 4 and that fact is also to be noted in the records of the court.
Sex Offender Registration
It is accepted that owing to the charges for which you have been sentenced, that upon your release, you will have an obligation to comply with your reporting and other obligations under the Sex Offenders Registration Act [2004] for the rest of your life.

I understand there is now a document in that room. So I have signed that document already. So what that relates to then is something you will need to acquaint yourself with. I am not suggesting you are going to do it now. It is a very lengthy document and all I am doing is providing to you your obligations under that Act, getting you to sign and by doing that, acknowledging that you have received those explanations as your responsibilities under the Sex Offender Registration Act 2004.
Now, as you will see when you have more time to go through the things that are in that document, it imposes a number of conditions upon you and they are serious matters. They include impediments to any future employment in a number of areas and serious impediments to your future contact with children and the need to report any contact in a timely fashion. You are going to need to familiarise yourself with those matters. Any breach of that Act or your reporting obligations, is a very serious criminal offence. You will need to be complying with those obligations upon your release for the rest of your life.
Normally you would be in court and I would send your counsel down to have a bit of a chat to you about those sorts of things. Now, Mr Barratt, you have seen these documents before, I am assuming.
MR BARRATT: Yes, Your Honour.
HIS HONOUR: All I am really dealing with here is, I am sure you will know, is the notification of his reporting obligations. It's a very lengthy document, it goes into all his requirements under that Act. He's not being asked to read all that now, it would be impossible for anyone to do. He will need to read it in due course and have it explained to him if needs be, but he's being really asked at this point to, by his signature, acknowledge receipt of that notice. You understand that.
MR BARRATT: Yes, Your Honour.
HIS HONOUR: Do you need to speak to your client about that or are you content with my explanation and your expectation is he'll sign it?
MR BARRATT: Yes, Your Honour, I'm content (recording malfunction 01:34:22)
HIS HONOUR: Mr Nenna, towards the very end of that document (indistinct) but if you'd be good enough to sign the relevant portion of that document please, if you would. Have you signed that?
OFFENDER: Yes, sir, I have.
HIS HONOUR: I wonder if the prison officer with you would be good enough to sign as a witness please.
PRISON OFFICER: Whereabouts am I signing, Your Honour?
ASSOCIATE: You need to cross out the section where it says 'Associate' and just write who you are, thank you.
PRISON OFFICER: Okay, yeah.
HIS HONOUR: Thank you. All right, thank you for that. Well, now that's been done. Let me just see, are there any other matters then from either of you? From you, Ms Gauld?
MS GAULD: No, Your Honour.
HIS HONOUR: From you, Mr Barratt?
MR BARRATT: No, Your Honour.
HIS HONOUR: You'll need to, obviously, speak to your client in detail, whether it's you or Mr Pearson, I'm not sure, maybe both of you, I don't know. You'll need to have a conference with him in due course to discuss, well, what's occurred in this case and his rights in relation to the outcome and, for that matter, the sentence that I've just imposed. That'll take some level of detail, I would've thought. It doesn't seem to me it's appropriate you do that in a short conversation that I could give you at this stage. I'm assuming you're going to need to make a separate conference time with him. Is that right or not?
MR BARRATT: Yes, Your Honour. We'll organise a separate time to speak to

Mr Nenna at some length, probably later this week or (recording malfunction)
HIS HONOUR: Well, he's heard you say that, so there's no need to utilise the link now then?
MR BARRATT: No. No, Your Honour.
HIS HONOUR: That completes the matter then.
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[2022] VCC 1550

12 September 2022