Director of Public Prosecutions v Nwigwe
[2021] VCC 920
•8 July 2021
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01521
Indictment No. L11066171
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| OBIYO CHIGOZIE NWIGWE |
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JUDGE: | HIS HONOUR JUDGE D SEXTON | |
WHERE HELD: | Ballarat | |
DATE OF PLEA HEARING: | 29 June 2021 | |
DATE OF SENTENCE: | 8 July 2021 | |
CASE MAY BE CITED AS: | DPP v Nwigwe | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 920 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sexual Penetration of a Child Under the Age of 16; Using a Carriage Service to Transmit Indecent Communications to a Person Under the Age of 16
Legislation Cited: Sentencing Act 1991; Sex Offenders Registration Act 2004; Crimes Act 1914 (Cth)
Cases Cited:R v Verdins (2007) 16 VR 269; Brown v R (2019) 59 VR 462; Director of Public Prosecutions (Vic) v Swingler (2017) 269 A Crim R 526; Gordon v R [2013] VSCA 343
Sentence: Total effective sentence of six years’ and six months’ imprisonment with a non-parole period of four years’ and three months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr B. Sonnet | Solicitor for the Director of Public Prosecutions |
| For the Offender | Mr C. Mandy SC (29 June 2021) Mr D. Georgiou (08 July 2021) | Melasecca, Kelly & Zayler |
HIS HONOUR:
Introduction
1Obiyo Chigozie Nwigwe, you have pleaded guilty to four charges of sexual penetration of a child under the age of 16, which carries a maximum penalty of 15 years’ imprisonment, and one charge of using a carriage service to transmit indecent communications to a person under the age of 16, which carries a maximum penalty of seven years’ imprisonment.
Circumstances of Your Offending
2The circumstances of your offending were set out in the Summary of Prosecution Opening For Plea dated 23 May 2021, Exhibit 1, at your plea hearing. That document sets out the factual basis of your offending for which you will now be sentenced.
3Your offending can be briefly summarised. Your offending occurred over a 15-day period between 4 and 19 March 2020. At that time, you were employed as an Emergency Doctor at the Bendigo Hospital. In November of 2019 you began working in the Emergency Department. At this time your wife and three young children were still living in the United Kingdom but were expected to move to Australia when a suitable residential property had been purchased.
4On 4 December 2019, you informed a nurse at the hospital, Monica Aguirre,[1] that you had just purchased a property. Ms Aguirre informed you that her
brother-in-law, Duncan Aguirre,[2] also lived in the neighbourhood where you had purchased, along with his wife and two daughters. Sometime later that month you attended at the Aguirre house and introduced yourself to the family, including your victim, Adele Aguirre,[3] who was then aged 13. You were informed of Adele’s age, and that her older sister, was aged 14.[1] A pseudonym - in order to prevent possible identification of the victim in this matter, pseudonyms of relevant individuals have been used.
[2] A pseudonym.
[3] A pseudonym.
5On 4 February 2020, your wife and three young children arrived from the United Kingdom. Both the Aguirre family and yours developed a close friendship, with Mr Aguirre assisting you with household maintenance and the children of both families often playing together. In mid-February 2020, your wife was required to return to the United Kingdom to complete her medical studies and was expected to be away for some time. This left you with your young children.
6Your first offence was committed on 4 March 2020. On that date, you were at your family home with your children. Adele, her older sister and another young female were also present at this address. You asked Adele to come to your bedroom, and once inside and the door was closed, you approached her and placed your hands on her hips, pulling her towards you. You kissed Adele and moved your hands to her buttocks and squeezed, whispering to Adele, “I love you”. After about two minutes of kissing, you took Adele to the walk-in robe and pulled out your penis. You placed both hands on her shoulders and pushed her to the ground. You then inserted your penis into Adele’s mouth, pushing your penis in and out until you ejaculated into 13-year-old Adele’s mouth. She spat the ejaculate into the adjoining bathroom sink. Your conduct in this regard forms the basis of Charge 1 on the indictment, sexual penetration of a child under 16. As you both exited the bedroom, Adele’s face was observed to be very red and flushed, causing Adele’s sister to ask if she had been crying. Adele later explained to her father that she had been in your bedroom as she was upset as she had failed a test that day, an excuse which was accepted by Mr Aguirre at the time.
7A few days later, on a date between 5 March and 31 March 2020, you sent a naked picture of yourself to Adele through your mobile phone. This picture depicted your naked body including your face and penis. Adele sent a picture back of herself, depicting her wearing tracksuit pants and a bra. According to Adele, you sent her naked images on other occasions. Your conduct in sending Adele a naked picture of yourself a few days after the incident in the walk-in robe forms the basis of Charge 2 on the indictment, use carriage service to transmit indecent communication to a person under 16 years of age.
8On 9 March 2020, five days after the incident in the walk-in robe, Adele and her older sister attended at your home as you had organised an outing with your children. When she arrived, Adele told you that she did not want to go as she was suffering menstrual cramps. You took Adele’s hand and directed her to your bedroom. There you kissed Adele, before pulling up her top and sucking her breast. Adele then got down on her knees and you inserted your penis into her mouth. You then withdrew your penis, masturbated and then ejaculated into Adele’s mouth. Your conduct in this regard forms the basis of Charge 3 on the indictment, sexual penetration of a child under 16.
9A few days later on 14 March 2020, your offending escalated significantly. Adele attended on that day at your home as you had organised an outing to the local go‑kart centre. Adele arrived two hours earlier than the prebooked session. She was sitting with your children watching a movie when you called out for her. You grabbed Adele by the hand near the stairs and walked her into the bedroom, shutting the door. You then removed her clothing except her bra. You then directed Adele to the bed and there inserted your penis into her vagina. You engaged in sexual intercourse with Adele for approximately five to 10 minutes, and during this you did not wear a condom. You both then got dressed and exited the bedroom at separate times. Adele returned to sit on the couch with your children. After about 45 minutes you called Adele’s name and again took her into the bedroom where you kissed her. You also inserted your tongue into Adele’s vagina. You then inserted your penis into Adele’s vagina, with this act lasting for about five minutes. You then changed positions with Adele and again inserted your penis into her vagina, ejaculating onto her stomach. Afterwards, you massaged Adele’s arms, back and bottom with oil whilst she was naked, this episode lasting approximately 20 minutes. Afterwards, you drove your children and Adele to the local go-kart centre. Your conduct on this day forms the basis of Charge 4 on the indictment, sexual penetration of a child under 16. This is a rolled-up charge, incorporating the three times that you penetrated Adele’s vagina with your penis and the one occasion when you penetrated her vagina with your tongue.
10Five days later on 19 March 2020, at approximately 8:00 am, Adele attended at your home and asked if her father was there. Mr Aguirre had previously attended at your home and drove your children and Adele’s older sister to school. You and Adele went into the lounge room and started kissing for approximately two minutes before you escorted her to the bedroom. There you laid Adele onto her back on the bed and removed her shoes and underwear. You then inserted your penis into Adele’s vagina. After a period of time you both changed positions and again you inserted your penis into Adele’s vagina. After a period of time you both again changed positions and you inserted your penis into Adele’s vagina, on each of these occasions not wearing a condom. Your conduct in this regard forms the basis of Charge 5 on the indictment, sexual penetration of a child under 16. This is a rolled-up charge, incorporating the three instances of penetration of Adele’s vagina with your penis as I have described.
11During the sexual activity on 19 March 2020, Mr Aguirre called you on your mobile phone. As a result, you and Adele stopped engaging in sexual intercourse. Adele ran back to her home address where she was confronted by her mother who asked where she had been. Adele stated that she had gone for a walk. Mr Aguirre attended at your home a short time later and spoke to you, at which time you denied that you had seen Adele.
12A few days after your offending on 14 March 2020, Adele told a school friend that she had sexual intercourse with you. A few weeks after your last offence on 19 March 2020, Adele contacted you stating that she felt guilty about the relationship with you, and stated that she needed to tell someone about the relationship. You variously responded that you would commit suicide, you would lose your family and that your parents would hate you. On 29 April 2020, Adele disclosed her relationship with you to her mother and later that day to her father. That same day, Adele and her parents attended the local Police Station and reported the matter. She subsequently made VARE statements detailing the offending.
13On 30 April 2020, the day after the matter was reported to police, Adele participated in a pretext call with you, where she asked you why you had stopped contacting her. She enquired whether it was because the sexual intercourse was not good, and you replied variously, “No. You’re amazing but you’ve always been amazing. … If we were in another life, if you were above 18 and I was single, then that would be perfect because I think you are an amazing person.”
14On 3 May 2020, you were arrested and interviewed, making no admissions to the offences as alleged by Adele. You stated that the allegations were “all lies” and that it was part of an intentional act to defame you. You declined to be further interviewed with respect to the additional allegations made in the subsequent VARE statements by Adele. Notwithstanding your denials to police, a subsequent statement made by Pastor Michael Goyne of the Enjoy Church indicates that in a telephone conversation he had with you on 27 April 2020, two days before Adele reported the matter to police, you admitted to engaging in sexual relations with Adele to Pastor Goyne.
15Subsequent police analysis of your mobile phone revealed a total of 929 phone and text messages being exchanged between you and Adele between 16 February and 30 April 2020. Adele’s mobile number was saved as “Del 13” in your contact list, and police also located naked images of you that had been sent to Adele.
Victim Impact Statements
16Victim Impact Statements were completed by your victim, Adele Aguirre, and her two parents, Duncan and Rachael Aguirre,[4] on 26 June 2021, Exhibits 2, 3 and 4 at your plea hearing. Both Adele and her parents read out their Victim Impact Statements at your plea hearing.
[4] A pseudonym.
17Nothing I can say can do justice to the depth of pain and suffering clearly exhibited by Adele and her parents through their Victim Impact Statements. Each showed enormous courage, integrity and character when reading out their statements, and they are to be commended for the respectful manner in which they participated in the hearing.
18It is clear from Adele’s statement that the impacts of your offending upon her have been catastrophic and have touched virtually every aspect of her life. Adele spoke eloquently of the impacts on her physical and emotional wellbeing, the impacts upon her schooling, her relationship with her family and her general outlook on life. Adele’s mother, Rachael, spoke of Adele’s pre-existing vulnerabilities and her own observations with regards to the impacts of your offending on her daughter. Clearly, they have been extremely significant and upsetting for the Aguirre family. Rachael spoke of the trust placed in you by Mr and Mrs Aguirre and your complete betrayal of that trust by sexually abusing Adele on multiple occasions. According to Rachael, in return for their kindness you have devastated and ruined the Aguirre family and have taken away their lives as they knew it. Adele’s father, Duncan, spoke of his great pain and distress as a result of your offending, and he spoke eloquently of his feelings of failure as a father to protect Adele, referring to this as a parent’s worst nightmare. Mr Aguirre referred to the higher standard he expected of you due to your occupation as a doctor, and the intense feelings of devastation, anger, torment, anxiety and sadness as a result of your offending against his child, made all the more worse according to Mr Aguirre given that you engaged in this offending in proximity to your own young children.
19As I have said, nothing I now say can in my view do justice to the pain and suffering that your offending has caused to Adele and her family. Of course, the impact of your offending on your victim and her family is just one of the many sentencing factors that I must take into consideration in the sentencing exercise, and it is important not to be overwhelmed by the gravity of those statements. Nevertheless, Victim Impact Statements are an important means through which victims of crime and their families can meaningfully participate in the sentencing process, by informing the Court of the often long lasting and catastrophic consequences of offending upon them. I have carefully read and considered each of the Victim Impact Statements in this case, and have taken them into consideration when fixing an appropriate sentence in your case.
Nature and Gravity of Your Offending
20The law imposes an absolute prohibition on sexual contact with children, in order to protect them from harmful premature sexual activities. Adults transgressing this prohibition must expect stern punishment. Overall, I regard your offending against Adele to be extremely serious. You were at the time a Doctor working in the Emergency Department of the Bendigo Hospital. The community rightly expects the highest standards of behaviour with respect to medical practitioners, a profession focussed on the care of others and protection from harm. Through your profession you must surely have known of the likely impact of your sexual offending on your 13-year-old victim. Your ability to sexually offend against Adele came about through your friendship with her parents. Understandably and particularly given your profession, they trusted you around their children. Through your offending you betrayed that trust spectacularly, by repeatedly sexually penetrating their young daughter. Adele was young and vulnerable and obviously there was a significant age disparity and power imbalance between the two of you. On occasions your sexual offending took place in close proximity to other young children, including your own three young children. I accept that in contrast to other such cases, your offending was limited to a 15-day period and it appears that you stopped offending of your own volition on 19 March 2020, some weeks prior to the matter being reported to police on 29 April 2020. However, whilst it was a short time period of offending, it was an extremely intense time period of offending, with multiple and escalating episodes of sexual penetration amidst other contextual behaviour, and amidst almost 1,000 phone and text messages being exchanged between you and your young victim. Furthermore, whilst you ceased offending on 19 March 2020, when later speaking with Adele, and she indicated a desire to tell someone about the relationship, your entreaties to dissuade her doing so - variously indicating that you would lose your family and commit suicide, represents shameful and selfish conduct on your part, clearly motivated to avoid detection.
21With regard to the acts forming the basis of the charges on the indictment, the prosecution set out various relevant factors with regards to offence gravity referable to each charge at paragraphs 7 to 11 of the prosecution Submissions on Plea document dated 28 June 2021, the substance of which I agree with. Whilst your conduct in sending a naked image of yourself to Adele in March 2020, Charge 2 on the indictment, is highly concerning, I agree with the prosecution that this charge is at the lower end of the offence gravity spectrum.
22In relation to the remaining charges on the indictment, relating to sexual penetration of Adele, each of your charged acts were accompanied by significant and concerning contextual acts which in my view accentuate the gravity of your offending – kissing with regards to Charges 1, 3, 4 and 5; sucking your victim’s breast with regards to Charge 3; masturbation of your penis referable to Charge 3; and naked massage referable to Charge 4.
23With regards to Charges 1 and 3, sexual penetration by inserting your penis into Adele’s mouth, the gravity of your conduct in this regard is accentuated by the fact that on both occasions you ejaculated into Adele’s mouth. With regards to Charges 4 and 5 on the indictment, I agree with the prosecution that these are the most serious charges on the indictment. Both are rolled-up charges, essentially a collection of charges bundled together into a single charge. Charge 4 reflects three instances of sexual penetration by you introducing your penis into Adele’s vagina and one instance of sexual penetration by introducing your tongue into Adele’s vagina. Charge 5 incorporates three instances of you sexually penetrating Adele by introducing your penis into her vagina.
24Charge 4 in my view is particularly serious. The offending covered by this charge took place whilst your own children were at home. On this occasion you took Adele into the bedroom and engaged in penile/vaginal sexual intercourse with her before she returned to sit on the couch with your children. After about 40 minutes you called her back into the bedroom where you engaged in the other three acts which form the basis of Charge 4, showing significant determination on your part.
25In relation to the penile/vaginal sexual penetrations incorporated in Charges 4 and 5, you did not wear a condom, accentuating in my view the degree to which you showed no care for the welfare of your young victim.
26In all the circumstances, I agree with the prosecution that the sexual penetration charges, particularly Charges 4 and 5 on the indictment, represent serious examples of this offence. In my view, for the reasons I have outlined, the objective seriousness of the sexual penetration charges sits below, but approaching a
mid-range example of such offending – acknowledging the difficulties in identifying such an intangible concept.[5][5] McPherson v The Queen [2021] VSCA 53 at [31].
Your Culpability and Degree of Responsibility for the Offending
27Your counsel submitted that given your character and reputation prior to the offending, the explanation for your offending must lie in the cause of a significant distortion of your normal psychological social functioning.[6] Reliance was placed on the opinions of psychiatrist Dr Lester Walton,[7] and psychologist, Luke Armstrong,[8] to submit that at the time of your offending you were undergoing extreme emotional turmoil and suffering from Post-traumatic Stress Disorder, which led to a compromised exercise of appropriate judgment which contributed to the offending. Your counsel submitted therefore that your moral culpability for the offending was reduced somewhat due to your impaired psychological functioning at the time of the offending, in accordance with the well-known Verdins principles.[9]
[6]Defence Outline of Plea Submissions dated 25 June 2021 at paragraph 12, Exhibit A.
[7]Report dated 3 June 2021, Exhibit B.
[8]Report dated 24 June 2021, Exhibit E.
[9]R v Verdins (2007) 16 VR 269.
28In order to appreciate the nature of this submission, some detail with regards to your personal background is required. You are now 44 years of age. You have no prior criminal history, and clearly you are a man with considerable aptitude and ability. You were born in Nigeria into a highly respected and high achieving family. You are the eldest of four children. Your father is a medical director of a local hospital, is a general surgeon and has a master’s degree in Tropical Medicine. Your mother is a professor of Aquatic Biology. Each of your siblings are similarly high achieving, working in the area of paediatrics, engineering, and the law. Your upbringing was strict but loving and deeply religious. Your family were very prominent in the local community, and it seems you were essentially a member of an aristocratic family, with your father being the equivalent of a prince and your mother also having connections with royalty. You were it seems, as you grew up, placed under extreme expectations relating to your conduct and you were perpetually on show, with any deviation in normal behaviour bringing deep shame to your family due to their position in society. Your primary and secondary education was in Nigeria, where you were apparently a very good student. However, you have disclosed being sexually abused by a female teacher at the age of 10, involving multiple acts of oral sex. You have apparently sought to block out this experience since then. According to psychologist, Mr Luke Armstrong, you have been brought up in a household of strict moralistic values, where religion featured prominently, leading to a degree of sexual repression.
29You attended boarding school from the age of 11. After subsequently completing Year 12 you undertook tertiary studies in medicine in Nigeria before undertaking an internship within Nigeria and then the United Kingdom.
30You met your future wife when you were 22 in 2001 in Nigeria. Remaining true to your religious beliefs with regards to abstinence from sex before marriage, after marrying in 2006 together you had three children now aged 12, 10 and seven. Your wife is also a doctor and as evidenced from her character reference, whilst divorce proceedings have been initiated as a result of your offending, your wife remains supportive and wants you to be a part of the children’s lives.
31You became a specialist in emergency medicine in 2016 whilst in the United Kingdom, working at a number of hospitals before being offered positions in Australia in 2017. You worked in Sydney and then from 2019 in Bendigo. You have reported encountering entrenched racism upon entering Australia and also have endured significant loneliness as a result of being separated from your wife for long periods whilst she remained in the United Kingdom. You have reported that racism was particularly entrenched in regional areas of Victoria where patients and colleagues would often refer to you in derogatory terms. Your experiences of racism apparently culminated in a critical incident in November 2019 where you were called to treat a patient with a suspected fractured jaw. The patient was apparently abusing and threatening hospital staff and you were asked to intervene. You believe that the patient subsequently obtained your direct contact number from hospital records and after being escorted from the hospital allegedly engaged in threats to kill you.
32Soon after you began experiencing the symptoms of Post-traumatic Stress Disorder and within four weeks of this incident you experienced a home burglary. In this context you have disclosed that your mental state began to deteriorate, and that at the time you befriended the Aguirre family, you were in this deteriorated mental state.
33According to psychologist Luke Armstrong,[10] it is likely that your mental state deteriorated within the context of emergent and undiagnosed Post-traumatic Stress Disorder and other culminative factors which included a long-distance relationship and feelings of isolation and alienation at work. According to Mr Armstrong:
“By the time Mr Nwigwe befriended the victim’s family he had in my opinion deteriorated to a surreal, isolated and regressive state of mind. Within this context, Mr Nwigwe lost perspective.”
[10]Report dated 24 June 2021, page 5.
34According to psychiatrist Dr Lester Walton,[11] you would qualify for a diagnosis of Major Depressive Disorder and Post-traumatic Stress Disorder, with these psychiatric conditions being caused by you being subject to death threats at your place of work and being additionally vulnerable because your spouse was absent overseas. According to Dr Walton:
“I believe that Dr Nwigwe's seemingly extreme emotional turmoil during the period of the offending has lead [sic] to compromised exercising of appropriate judgement and in that sense his psychiatric condition has made a contribution to the offending which arises as markedly out of character behaviour.”
[11]Report dated 3 June 2021, pages 5-6.
35In my view, having considered the matter, I am not satisfied that your
Post-traumatic Stress Disorder and depression warrant a reduction in your moral culpability pursuant to the Verdins principles. Whilst Dr Walton opines that your psychiatric condition as he describes it led to “compromised exercising of appropriate judgment”,[12] this is not further explained. The Verdins principles, and in particular the justification for a reduction in moral culpability for the particular offending due to impaired mental functioning, requires a clear evidentiary basis, which in my view is absent in your case. This is particularly so in my view given the extended and intense nature of the offending for which you now fall to be sentenced. I am satisfied, however, that your psychological conditions are relevant in contextualising the circumstances in which you offended. I have little doubt that due to the combination of circumstances as I have described them, that at the time you met the Aguirre family you were lonely, depressed, seeking comfort and vulnerable to attention from others. The impacts upon you of the hospital incident and the resulting Post-traumatic Stress Disorder coupled with depression, go some way in my view to contextualise your otherwise utterly inexplicable behaviour given your complete absence of criminal history and otherwise good character. However, these conditions do not in my view reduce your moral culpability pursuant to the Verdins principles. Accordingly, in my view your level of responsibility for your offending remains significant.[12] Report dated 3 June 2021, page 5.
Sentencing Factors
36The Sentencing Act 1991 requires me to take into consideration various sentencing factors in formulating an appropriate sentence in your case. I have already referred to the maximum penalties, the gravity of your offending and the impact on your victim, your level of culpability or responsibility, and your previous character.
37I am satisfied that a significant sentencing discount is warranted by virtue of your early plea of guilty. As is clear from the chronology contained in the Summary of Prosecution Opening for Plea, I am satisfied that you entered your plea of guilty at an early stage in proceedings, taking into consideration the procedural and jurisdictional matters outlined in that chronology. Your early plea of guilty is plainly reflective of acknowledgment of wrongdoing, is a facilitation of the administration of justice and has utilitarian value. The utilitarian value of your early plea is particularly significant given the sensitive nature of the charges. Through your plea of guilty, neither your victim nor any other witnesses have been required to give evidence, and the community has been spared the cost and delays associated with contested proceedings. The value of your early plea is particularly heightened due to the current COVID-19 pandemic environment which has placed extraordinary pressure on the criminal justice system. The authorities are clear that an increased, significant sentencing discount is warranted in these circumstances by virtue of your early plea of guilty.
38Further, I am satisfied that an additional sentencing discount is warranted due to your remorse. Whilst you did not admit your wrongdoing in the police interview on 3 May 2020, you had already admitted to engaging in sexual relations with your victim to your pastor some days earlier. Furthermore, your expedited plea of guilty in my view in and of itself is capable of reflecting your remorse for your wrongdoing. Psychiatrist Dr Lester Walton has indicated that you did not seek to proffer any excuse for your misconduct and according to Dr Walton you impress as “straightforwardly remorseful.”[13] According to forensic counsellor Mr Geoffrey Burrows in his treatment report dated 21 June 2021, Exhibit D, you are deeply ashamed of your actions.[14] According to psychologist Luke Armstrong in his report dated 24 June 2021, Exhibit E, you presented with genuine remorse for your offending, both to your victim and her family, and you made no attempt to minimise or justify your offending.[15] Finally, having read the 28 impressive character references tendered at your plea hearing and marked collectively Exhibit G, most if not all referees refer to your genuine remorse for your offending. They also collectively refer to your charitable endeavours, kind hearted and compassionate nature, and the degree to which you are generally held in high esteem. In my view, your genuine remorse bodes well for your prospects for rehabilitation and decreases the need for any penalty imposed to reflect the sentencing purposes of specific deterrence and community protection.
[13]Report dated 3 June 2021, page 6.
[14]Report dated 21 June 2021, page 1.
[15]Report dated 3 June 2021, page 6.
39The offence of sexual penetration of a child under 16 is a standard sentence offence. The standard sentence for this offence is six years’ imprisonment. Pursuant to the relevant provisions of the Sentencing Act 1991, the period specified as the standard sentence for the offence is the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness. In considering the impact of standard sentencing on your case, I have considered the decision of Brown v R.[16]In particular, when sentencing for a standard sentence offence, I must take the standard sentence into account as one of the factors relevant to sentencing. This requirement therefore is to be treated as a legislative guidepost, having the same function as the maximum penalty. It does not allow the standard sentence to be viewed as a starting point. It does not affect the established instinctive synthesis approach to sentencing, it does not require or permit
two-stage sentencing, and does not otherwise affect the matters which I may or must take into account in sentencing. Accordingly, I have taken the standard sentence for the offence of sexual penetration of a child under 16 into account as one of the factors to consider in my instinctive synthesis of all of the relevant factors. My consideration of the standard sentence for this offence as one of these factors is reflected in the sentence I will impose.[16][2019] VSCA 286.
40Pursuant to s5A(2)(b) of the Sentencing Act 1991, in relation to a standard sentence offence, I can only pay regard to sentences previously imposed where sexual penetration of a child under 16 was the subject of the standard sentence scheme. The prosecution in this case provided a table of cases outlining details of relevant sentences imposed for this offence since the standard sentencing regime commenced operation. I have carefully considered each of those decisions referred to in the table, noting that each case is necessarily fact specific.
41The sentences I will impose with respect to the charges of sexual penetration of a child under 16 are lower than the standard sentence. Having identified and considered the relevant factors in assessing the sentence including the standard sentence, the objective seriousness of the offending and matters available in mitigation, these are the sentences I have determined to be appropriate.
42Charge 2 on the indictment, use carriage service to transmit indecent communications to a person under the age of 16, is a Commonwealth offence. In formulating an appropriate sentence with regards to this offence, I have had regard to the relevant provisions of the Crimes Act 1914 (Cth), in particular s16A of that Act. I am required to impose a sentence with regards to this offence which is of a severity appropriate in all the circumstances to your offending. You must be adequately punished for this offending. I am not permitted to impose a sentence of imprisonment unless I have considered all other alternatives, and come to the view that no other sentence is appropriate in this case. In sentencing you for this offence, I am required to take into account various matters, including your plea of guilty, cooperation and contrition for the offending, the nature and circumstances of the offences, the impact of your offending on your victim, the need to impose a sentence which reflects the sentencing purposes of adequate punishment, specific deterrence and general deterrence, and facilitation of your rehabilitation. In sentencing you for this offence, I have had regard to the decision of the Director of Public Prosecutions (Vic) v Swingler,[17] regarding the sentencing methodology, particularly with regards to the interaction of Commonwealth and State offences. In this case, the prosecution submitted that it would be open to me to fix a sentence with regards to this offence of six months or less, enabling a straight sentence of imprisonment to be imposed.
[17] (2017) 269 A Crim R 526.
43As a result of your offending, you have lost your career as a doctor. You have also lost your marriage and likely much of the substantial trust and respect of your community and your family. Your employment and professional prospects are substantially diminished well into the future and probably permanently. I have no doubt that you have worked very hard for many years to become a highly skilled doctor, and that career is now lost to you, along with the wealth and prestige it may well have offered. Furthermore, as evidenced through the media reporting of this case, you have suffered, in my view, reputational loss and humiliation through the publication of details of your offending within the local community.
44I am satisfied that due to your psychiatric conditions, namely the Post-traumatic Stress Disorder and depression, that you will find imprisonment to be particularly arduous, such that a mitigatory allowance is warranted pursuant to Verdins’ principle 5. I make that allowance based upon the opinions of Dr Lester Walton, the reports of consultant psychiatrist Dr Rajul Tandon, Exhibit C, and the report of psychologist Mr Luke Armstrong, Exhibit E. Furthermore, due to the nature of the offending you will likely be a protection prisoner, which will necessarily limit your access to activities and movement that would otherwise be available. You will commence your sentence of imprisonment within the COVID‑19 pandemic environment, with the well-recognised restrictions within the prison setting no doubt accentuating the hardship of your sentence of imprisonment. You will serve your sentence of imprisonment with your family overseas, and accordingly you will most likely have reduced supports available to you throughout your sentence. It is likely that you will be deported upon your release. For all of these reasons, I am satisfied that a mitigatory allowance is warranted due to the hardship that a sentence of imprisonment will bring to you.
Sentencing Purposes and Other Matters
45In formulating an appropriate sentence in your case, I must have regard to various sentencing purposes. In my view, given the nature of your offending and matters personal to you, general deterrence remains a prominent sentencing purpose. Your counsel submitted that due to your depression and Post-traumatic Stress Disorder, there should be some slight moderation in the applicability of general deterrence pursuant to the well-known Verdins’ principles. I do not agree. Members of the community must know that encountering circumstances of emotional turmoil does not in any way excuse such serious sexual offending as yours. Any sentence I impose must send a message to the community that such serious offending will have significant consequences on sentencing.
46Given your absence of prior criminal history, your otherwise good character and your remorse, I am satisfied that specific deterrence is less important in the sentencing process.
47Your acceptance of responsibility and remorse is also relevant with regards to your prospects of rehabilitation and the facilitation of your rehabilitation remains an important sentencing purpose in this case. As indicated in the treatment report from Mr Geoffrey Burrows, you have voluntarily participated in a sex offender treatment program at your own expense on 28 occasions between 7 July 2020 and 24 May 2021. According to Mr Burrows, you have made good progress in this program, although you would benefit from further intervention to consolidate your progress in the long term and further reduce your risk of re-offending. Psychologist, Mr Luke Armstrong, in his report dated 24 June 2021, concludes, after utilising the STATIC-99 Tool with regards to the assessment of future risk of sexual re-offending and violent recidivism, dealing only with static rather than dynamic factors, that you present a moderate to low risk of reoffending. I am satisfied in all the circumstances that your prospects for rehabilitation are good, provided you obtain the necessary specialist interventions recommended by Mr Burrows. Such interventions are available both in custody and whilst subject to parole. It is hoped that such interventions will be provided to you in a timely and appropriate manner.
48I turn now to the issue of cumulation and totality. The prosecution submitted that cumulation is required in respect of all counts on the Indictment. In relation to Charges 4 and 5 on the Indictment, you fall to be sentenced as a serious sexual offender pursuant to the relevant provisions of the Sentencing Act 1991. Section 6E of the Sentencing Act1991 creates a presumption of cumulation with regards to sentencing for serious-offender offences, and pursuant to s6D of the Sentencing Act 1991, the protection of the community is the principle purpose for which a sentence should be imposed. Notwithstanding s6D(b) of the Sentencing Act1991, the prosecution did not seek a disproportionate sentence in your case.
49In my view, whilst a term of imprisonment is warranted with regards to Charge 2 on the Indictment, cumulation is not required with regards to that offence given its objective gravity, the fact that this conduct is contextual with regards to the more serious sexual penetration offences, and given the overarching principle of totality. With regards to the remaining charges on the Indictment relating to sexual penetration offending, I agree with the prosecution that cumulation is required, though subject as always to the overarching principle of totality and being cognisant of the principles articulated in Gordon v R.[18]
[18][2013] VSCA 343.
Sentence
50Mr Nwigwe, you engaged in egregious behaviour involving a very young and vulnerable girl, which has affected her and her family deeply. In order to reflect the applicable sentencing purposes and factors, and to appropriately denounce your conduct, and notwithstanding the mitigatory factors relied upon in your case, nothing short of a term of imprisonment of some length is required.
51On Charge 1, sexual penetration of a child under the age of 16, you are convicted and sentenced to two years’ imprisonment.
52On Charge 2, transmit indecent communication to a person under the age of 16, you are convicted and sentenced to six months’ imprisonment.
53On Charge 3, sexual penetration of a child under the age of 16, you are convicted and sentenced to two years’ and three months’ imprisonment.
54On Charge 4, a rolled-up charge of sexual penetration of a child under the age of 16, you are convicted and sentenced to three years’ and nine months’ imprisonment. This is the base sentence.
55On Charge 5 of the Indictment, a rolled-up charge of sexual penetration of a child under the age of 16, you are convicted and sentenced to three years’ and six months’ imprisonment.
56In relation to Charges 4 and 5, pursuant to s6F(1) of the Sentencing Act 1991, you are sentenced as a serious sexual offender, and I order that this fact be entered into the records of the Court.
57I order that eight months on Charge 1, 10 months on Charge 3 and 15 months on Charge 5 be served cumulatively upon each other, and upon the base sentence imposed on Charge 4, making a total effective sentence of six years’ and six months’ imprisonment. Pursuant to s11A(4) of the Sentencing Act 1991, I must fix a non-parole period of at least 60 per cent of the head sentence unless I consider that it is in the interests of justice not to do so. In this case, I order that you serve a period of four years’ and three months’ imprisonment before becoming eligible for parole.Pursuant to s18 of the Sentencing Act 1991, I declare a period of nine days’ pre-sentence detention, and I order that this period be deducted administratively from your sentence.
58Pursuant to s6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty, I would have imposed a total effective sentence of eight years’ and six months’ imprisonment with a non-parole period of six years.
59Pursuant to the relevant provisions of the Sex Offenders Registration Act 2004, registration is mandatory in relation to these offences and the reporting period is for life. I make those orders accordingly.
60Finally, I make the forfeiture order sought by the prosecution with regards to the iPhone, this application not being opposed by you.
61With regards to the vagaries of the Commonwealth scheme, I declare that Charge 2, the sentence of imprisonment, is to commence on today's date.
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