Director of Public Prosecutions v Orton (a pseudonym)
[2020] VCC 2069
•9 December 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
SEXUAL OFFENCES LIST
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOSHUA ORTON (a pseudonym)[1] |
[1] Joshua Orton is a pseudonym
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JUDGE: | HIS HONOUR JUDGE GEORGIOU | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 6 November 2020 | |
DATE OF SENTENCE: | 9 December 2020 | |
CASE MAY BE CITED AS: | DPP v Orton (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 2069 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sexual penetration of a person under the age of 18 – sexual penetration of a step-child – full admissions – early plea of guilty – no prior criminal history – breach of trust - standard sentence – serious sexual offender – registrable offender – reporting obligations for life.
Legislation Cited: s.6B(2)(a), 6D 6E Sentencing Act 1991
Cases Cited:R v Doran [2005] VSCA 271; Ryan v R (2001) CLR 267; Dawson v R; Stewart v R [2015] VSCA 166; Latina v R [2015] VSCA 102; DPP v Amaral [2020] VSCA 290; R v Jones [2014] VSCA 68; DPP v Walsh [2018] VSCA 148; Brown v The Queen [2019] VSCA 286; DPP v Dalgliesh (2017) 262 CLR 428; Grantley (a pseudonym) v The Queen [2018] VSCA 112
Sentence: Total effective sentence of 12 years’ imprisonment with a non-parole period of seven years and 10 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J Singh | Solicitor for the Director of Public Prosecutions |
| For the Offender | Mr M Reardon | Victoria Legal Aid |
HIS HONOUR:
1 Joshua John Orton, you have pleaded guilty to the following charges:
2 Charge 1, that between 1 May 2016 and 28 February 2017, you took part in an act of sexual penetration with Tahlia Mulgrave[2], a person under the age of 18, whom you knew to be the child of Poppy Orton[3], your de facto spouse, in that you introduced your penis into the mouth of Tahlia Mulgrave. This is a rolled-up charge.
[2] Tahlia Mulgrave is a pseudonym
[3] Poppy Orton is a pseudonym
3 Charge 2, that between 1 May 2016 and 28 February 2017, you took part in an act of sexual penetration with Tahlia Mulgrave, a person under the age of 18, whom you knew to be the child of Poppy Orton, your de facto spouse, in that you introduced your tongue into the vagina of Tahlia Mulgrave. This is a rolled-up charge.
4 Charge 3, that between 1 May 2016 and 28 February 2017, you took part in an act of sexual penetration with Tahlia Mulgrave, a person under the age of 18, whom you knew to be the child of Poppy Orton, your de facto spouse, in that you introduced your penis into the anus of Tahlia Mulgrave.
5 Charge 4, that between 1 September 2019 and 24 September 2019, you intentionally sexually penetrated Tahlia Mulgrave, a person you knew to be the child of your spouse. The particulars of this charge are that you introduced your penis into the mouth of the complainant. This is a rolled-up charge.
6 Charge 5, that between 1 November 2018 and 24 September 2019, you intentionally sexually penetrated Tahlia Mulgrave, a person you knew to be the child of your spouse. The particulars of this charge are that you introduced your tongue into the vagina of the complainant. This is a rolled-up charge.
7 The maximum penalty for each charge is one of 25 years imprisonment. Charges 4 and 5 are standard sentence offences. The standard sentence for the offence of sexual penetration of a stepchild contrary to s.50D(1) Crimes Act is 10 years imprisonment.
8 Exhibit P1 is the Amended Summary of Prosecution Opening for Plea. It sets out the circumstances of your offending. I do not intend to repeat all matters in the exhibit, which was read in Court by the learned prosecutor Mr Singh, but will summarise it as follows.
Offending
9 The victim was born on in 2008. She was aged between seven and eleven years at the time of your offending. She lived with you, her mother, and four siblings, first at an address at Colac[4] and then, from November 2018, at Colac East.
[4] Colas is a pseudonym
10 You were aged between 27 and 30 at the time of the offending.
11 You were invited to move into the Colac address by your then friend, the victim’s mother, in or about March/April 2015 as you were having difficulty where you were living with one of your neighbours. You told police during your interview that the neighbour had threatened to kill both you and your son.
12 After you moved into the victim’s house, you and the victim’s mother commenced a de-facto relationship in about May of that year. You married in January 2017. Together you have a son who was born in 2018.
13 In about May 2016, the victim was experiencing soreness in her legs, back and stomach. You offered to massage her to help relieve her pain.
14 A couple of days later, when you were again massaging the victim, you pulled your pants down and placed your penis between her legs, telling her it was part of the massage. You are not charged for that act and it and other uncharged acts were put before me to provide context to your offending.
15 On a later occasion, when you were again massaging the victim, you asked her what she knew about penises and whether she wanted to see yours. You told the victim that she could touch your penis if she wanted to. This is also conduct that is not the subject of a charge.
16 You told police, when interviewed, that ‘things started getting more frequent' in the period leading up to your being removed from the Colac address in February 2017. You said that the offending was happening once every two weeks.
17 Charge 1 is a rolled-up charge and is based on two separate incidents of you penetrating the victim’s mouth with your penis.
18 The first incident occurred between 1 May 2016 and 28 February 2017. You and the victim were driving to your home at Colac. You stopped and parked your car somewhere in the bush. Whilst still in the car, you placed your penis into the victim’s mouth. I was not informed of any more detail concerning this incident.
19 The second incident occurred at the Colac house when you called the victim into your bedroom. You removed her clothing and folded a rug over her. You placed the victim onto your bed and lay on top of her. You were also naked. The victim squealed and you covered her mouth with your hand. She was crying. You placed your penis into her mouth. The victim stated that you had your penis in her mouth for a couple of minutes or seconds. It is not clear for how long you had your penis in her mouth. The victim told police that she always had to suck on your penis otherwise she would not be allowed to leave the room.
20 Charge 2 is also a rolled-up count involving two separate incidents of penetrating the victim’s vagina with your tongue.
21 When interviewed by police, you told them that you would get the victim to lay on her back on the bed and you would lick her vagina and clitoris. You also told them that you tried to make it as enjoyable for her as you could so that she would want to continue with the activity.
22 You told police that on one occasion, in the victim’s bedroom at the Colac address, the victim told you that she did not want to do anything. You said to her, 'What if I do something to you?' You told police the victim sat on the bottom bunk whilst you proceeded to lick her vagina for 30 to 40 seconds. This is the first incident relevant to Charge 2.
23 In your interview with police, you told them that you had performed oral sex on the victim at the Colac address maybe twice. You told police that it happened once in your bedroom and once in her bedroom.
24 The second incident relevant to Charge 2 relates to your performing oral sex upon her in your bedroom at Colac. No other detail has been provided.
25 Charge 3 relates to an occasion between 1 May 2016 and 28 February 2017, at the Colac address, when the victim was playing outside with her siblings and you called her into your bedroom. You removed her clothing and lay her on the bed. You then attempted to penetrate her anus with your penis. The victim kept moving so that you would stop. She also squealed and you put your hand over her mouth. You then penetrated her anus with your penis. After you did that, you let the victim go back outside. The victim stated she was really scared and left shaking for a short time after the incident.
26 As I mentioned earlier, in February 2017 you were required to leave the family home. You returned to the family home in June 2018. The reason for your leaving the home is not relevant to my sentencing task.
27 In January 2019, you and the victim were watching television on the couch. You asked her if you could 'rub it up against' her. You lay on the floor with the victim on top of you rubbing against you. She told you that she wanted you to stop. You masturbated whilst the victim had her mouth open and was licking your penis. You then ejaculated onto the victim’s chest. This is also an uncharged act.
28 Charge 4 is a rolled-up count. There are two incidents which make up the charge. They relate to your penetrating the victim’s mouth with your penis.
29 The first incident relevant to Charge 4 occurred in September 2019. You penetrated the victim’s mouth with your penis and filmed yourself as you were doing so. It was accepted by your counsel that the filming of the penetration is a circumstance of aggravation. You also took two photographs of the victim’s naked chest.
30 On 24 September 2019, whilst at home and after your partner had left for a job interview, you asked the victim to come and speak to you in your bedroom. The victim did not want to go to your room but you told her you wanted to speak to her. She entered the room and you locked the door. You asked to take photographs of her but she did not want to. You told her, 'I wanna do something. I want some help to ejaculate.' The victim stated that she would go and take the photos but you asked whether you could rub against her and do some things to her first. The victim stated she would rather take photos but you insisted and the victim eventually gave in.
31 You removed the victim’s clothes and then performed oral sex upon her. You put your tongue into her vagina. This is the first incident relevant to charge five. You then rolled the victim onto her stomach and began rubbing your penis against her. This is an uncharged act. The victim reacted because, according to her, you had gone 'too close to the entry way'. You asked her whether she wanted to stop and she replied, 'Yes.'
32 You then asked the victim if you could put your penis into her mouth. You told her that she could only leave the room if you could place your penis in her mouth. You put your penis into her mouth, masturbated and ejaculated into the victim’s mouth. This incident is the second incident relevant to charge four. You then said to her, 'So do we have a deal? Do you wanna do this again?'
33 Charge 5 involved you performing oral sex on the victim on three occasions at the Colac East address. I have just described one of those incidents, being that which occurred on 24 September 2019.
34 Since the plea hearing was heard, I sought clarification as to the number of incidents that make up the rolled-up Charge 5. I received, on 4 December, a further document entitled 'Joshua Orton Schedule of Charged and Contextual Acts', which has been tendered and marked Exhibit P4. I understand this to be an agreed document.
35 What is agreed is that at Colac East[5], you performed oral sexual penetration of the victim on an additional two separate occasions. There is no further detail as these two incidents arise from your admissions when interviewed by police.
[5] Colac East is a pseudonym
36 On the evening of 24 September 2019, the victim was staying at her aunty’s house when she sent a text message to her mother at 8.49 pm. In the message the victim intimated that there was something wrong and that she did not like being around you or left alone with you. The following morning, after the victim returned home, she told her mother, 'You know how you and Joshua do the S-E-X stuff, he’s been doing that to me'.
37 Following this disclosure, you were confronted by your wife. You made no admissions to your offending. Instead, you fled the house whilst your partner was on the phone to police.
38 At 6.41 pm that evening, the police informant telephoned you. You told the informant that you were outside the Colac North Police Station[6] and that you wished to make a confession. You were then taken to the Colac Police Station[7] for interview.
[6] Colac North Police station is a pseudonym
[7] Colac Police Station is a pseudonym
39 During the recorded interview with the informant, you made full confessions and admitted to significantly more offending than the victim had disclosed. Included in your admissions are the following:
(1)That your behaviour towards the victim had become inappropriate a couple of years ago.
(2)That you had hurt her and you should not have done so.
(3)That you molested the victim and convinced her it was a good idea. She just wanted to make you happy, so she did what you asked.
(4)That you would rub yourself against her inappropriately with your penis or fingers and place your penis in her mouth.
(5)The offending began at Colac when you were giving the victim a massage.
(6)On the second occasion when you massaged the victim, you rubbed your penis against her.
(7)That on a later occasion, you removed the victim’s underwear and rubbed your penis against the victim’s vagina, telling her it was an accident.
(8)That the offending became more frequent and was probably happening once every two weeks before you were removed from the house.
(9)After returning to the house, you convinced the victim to 'do it again' and convinced her to do things to you.
(10)That you would put your penis between the victim’s thighs and have sex with her thighs.
(11)That you estimated your offending towards the victim occurred between 40 and 50 times over the period of the offending.
(12)That in September 2019, you had filmed the victim as you penetrated her mouth with your penis and you had also taken two photographs of her naked chest. You later masturbated whilst looking at the material and then deleted it from your telephone.
(13)That you became attracted to the victim since she reached puberty.
(14)That you recalled two occasions that the victim cried whilst you rubbed your penis against her.
(15)That you had ejaculated in the victim’s mouth, possibly three or four times, and on her approximately five or six times.
(16)That you had licked the victim’s clitoris around five or six times in total.
40 It is clear that many of the matters in the prosecution summary are uncharged acts which you have not disputed. You do not fall to be punished for those uncharged acts.
41 However, I may have regard to the uncharged acts to show the full context of your behaviour towards the victim and in regard also to sentencing considerations of specific deterrence and community protection.[8]
[8] See for example Lugo v R [2020] VSCA 75, [41]
42 The victim’s recorded evidence is summarised in the prosecution opening and includes the following matters:
(1)That on the day before her reporting the matter to police, you called her into the bedroom and you were rubbing your 'rude spot' against her bottom. You told her that, if she told her mother or anyone, you would kill yourself.
(2)She asked you whether she could leave as she did not want to do it. You told her she could leave only if she allowed you to put your 'rude spot' in her mouth for a bit. She allowed you to do that and then 'the stuff' went into her mouth.
(3)The first time you ever did anything to her, you removed her clothing, lay her down and put your 'rude spot' into her. She was frightened and wanted to tell her mother but did not do so because she thought she would get into greater trouble. She also thought that you would kill her if she told anyone about what you were doing. To be clear, that was her belief. She specifically stated that you did not say anything like that.
(4)On occasions when you were offending against her, you were not wearing any clothing.
(5)On one occasion you took off her clothes and placed a rug over her so that she was not moving. You then got on top of her and you covered her mouth to stop her from squealing. She began to cry.
Victim Impact Statements
43 In her brief impact statement, the victim stated that you have ruined her life and have done things to her that no child should ever have to experience. She further stated that she trusted you and loved you like a father. She has nightmares as a result of what you did to her and because of her fear, she has difficulty sleeping at night. She has trouble accepting that what you did is not her fault.
44 Your offending has also impacted upon the victim’s mother. I will summarise parts only of her impact statement. She stated that she feels vulnerable, stupid and hurt that you were able to betray her and all of the children. She feels ashamed because of the trust she placed in you. You were aware of the difficult relationship her children had with their own father and she considers that you used their vulnerability to prey upon them.
45 She goes on to state that you asked for her hand in marriage and made a commitment to that marriage at a time you were secretly performing the ‘ultimate betrayal of all betrayals’. She feels sickened that she placed so much trust and faith in you while you fooled her and her children into believing that you were a loving, caring, honest, respectful father, partner, and member of the community.
46 She further stated that you have left her feeling guilty and wondering what she could have done to prevent from happening what you did. She feels that you manipulated her and her family into feeling they had a perfect life. She ruminates over things that you had said to evaluate whether there was any sign that would have caused her to stop your offending at an earlier time.
47 She is embarrassed, ashamed and full of regret that she stood by your side in your battle for custody of your own children. She is disgusted that she ever loved you, touched you, shared her innermost thoughts and feelings with you. Your conduct has caused her to lose trust in people, especially men.
48 The summaries of the impact statements do not do them full justice. I have had full regard to the entirety of the statements and have little doubt that your conduct has had a profound impact upon the victims.
Personal circumstances
49 You are now 32 years of age.
50 Your mother was aged just 14 years when she fell pregnant with you and
15 years when you were born. Your father denied paternity and had no role in your upbringing.
51 You were raised mostly by your maternal grandmother who was granted custody of you. She worked as a nurse but had to resign following a workplace injury around the time you started primary school.
52 You left your grandmother’s home at the age of 17 when she re-partnered. You did not get along with her new partner. You also had contact with your maternal grandfather whom you would visit on school holidays. He also provided financial support for your care. Your grandfather passed away when you were 11 years of age.
53 You have three younger half siblings on your mother’s side. You do not have much involvement with them, particularly since your arrest.
54 Your biological father has never had any involvement with you. You did manage to find him when you were 15 years of age but that meeting resulted in an altercation between you. At the age of 28 you discovered you have three half siblings on your father’s side. You were in regular contact with one until the time of your arrest.
55 You did not have stable residence on leaving your grandmother’s home until the age of 20 and you were alternating between other family members, girlfriends and friends.
56 Your living arrangements stabilised when you began a relationship with the mother of your first child. Your first child, a daughter, was born in 2010. The relationship with your first partner lasted approximately three years and ended in 2011.
57 In 2011, you formed another relationship and had a second child, a son, born in 2012. That relationship ended in approximately 2013. You were the
full- time carer of your son from the time of your separation with his mother until approximately February 2017.
58 As mentioned earlier, you and the mother of the victim have a son, who was born in 2018.
59 You left school partway through Year 11 and commenced an apprenticeship as a mechanic. You were not able to continue with your apprenticeship after you moved out of your grandmother’s home, as you were dependent upon her for transport to your place of work.
60 On leaving your apprenticeship you obtained work with an abattoir. However, after six months, your employment was terminated because, according to you, you had no work ethic at the time.
61 At the age of 20, you recommenced your apprenticeship. After some three years, you left that job when your relationship with the mother of your first child broke down. You did not work again until the age of 28, but instead raised your second child. At the age of 28, you again found work in a mechanic and were working in that capacity until the time of your arrest on
25 September 2019. You have been in custody since then.
Defence submissions
62 Mr Reardon, who appeared on your behalf, relied on the following matters in mitigation of penalty:
(i) the admissions you made to police and your early pleas of guilty;
(ii) the pleas having been entered at a time when the COVID-19 pandemic is impacting on court lists and as such, are of even greater utility;
(iii) a number of charges and incidents forming part of those charges would not have been discovered by the prosecuting authorities in the absence of your admissions, in particular, Charges 2 and 5, the first incident relevant to Charge 1, the filming of the offending relevant to Charge 4 which is an aggravating circumstance of that offence;
(iv) your remorse;
(v) a reduced need for specific deterrence, given your full and frank admissions and absence of prior convictions;
(vi) the hardships you are suffering on remand as a result of the COVID-19 pandemic restrictions, including the inability to receive personal visits from your mother and grandmother and the inability to participate fully in programs that would otherwise have been available; you did, nevertheless, manage to complete two courses in custody, the first being a course in building better relationships and the second, an 'Alcohol and Me' course; and
(vii) the application of the totality principle of sentencing.
Prosecution Submissions
63 Mr Singh who appeared on behalf of the Director, accepted that the plea of guilty was indicated at a very early time and that it carries significant utilitarian benefits. In addition, Mr Singh accepted that you made full admissions in the recorded interview which went beyond the allegations made by the victim. Both he and Mr Reardon referred to R v Doran[9] in that regard. Mr Singh also noted that the offence of sexual penetration of a stepchild is a standard sentence offence. Further, you fall to be sentenced as a serious sexual offender on Charges 2 to 5 on the indictment. By reason of s.5(2G) of the Sentencing Act 1991, I must make an order for imprisonment on Charges 4 and 5 on the indictment.
[9][2005] VSCA 271
64 Mr Singh also relied on the fact that s.6D of the Sentencing Act 1991 requires that, in determining the length of the sentence to be imposed on Charges 2 to 5, I must regard the protection of the community as the principal purpose for which sentence is to be imposed. It was not submitted, however, that I impose a sentence longer than that which is proportionate to the gravity of your offending.
Sentencing considerations
65 You have made full admissions to your offending and have pleaded guilty at the earliest reasonable opportunity. The charges against you resolved at a committal mention on 14 May 2020.
66 You are a person without any previous criminal conviction. I have regard to that fact and to the character reference provided by your grandmother. She states that you grew up as a happy and loving child who did well at school with many friends. She is aware of the offences to which you have pleaded guilty. Your grandmother remains supportive of you.
67 I have regard to the fact that, for some of your time on remand, since approximately 21 March 2020, you have laboured under the difficulties caused by the COVID-19 pandemic, both in terms of personal visits and available courses.
68 Your early pleas of guilty have had significant utilitarian value in sparing witnesses in this case from having to give evidence. This is particularly significant having regard to the age of the victim and the emotional trauma that would no doubt be caused to her and her mother in having to re-live the events at trial. Your pleas of guilty have also avoided the need for a trial which, in the context of the unprecedented disruptions to the criminal justice system caused by the COVID-19 pandemic, is a significant matter weighing in your favour.
69 I find that your pleas of guilty are indicative of your genuine remorse for your offending which was expressed during the recorded interview with police at the time of your arrest. Your pleas of guilty have facilitated the course of justice and are an acceptance by you of your responsibility for the offending. You are entitled to a significant measure of leniency by reason of your cooperation and pleas of guilty.
70 Further, I accept also that you are entitled to further leniency by reason of the fact that charges two and five arise from your voluntary disclosures to police. The first incident relevant to Charge 1 also resulted from your voluntary disclosure to police during the interview, as did your disclosure that you filmed part of your offending relevant to Charge 4. That admission provides proof of an aggravating circumstance that otherwise would not have been present.
71 In R v Doran, Buchanan JA, with whom the other members of the court agreed, stated:
Most importantly, however, the appellant quite voluntarily, without any pressure from any authorities, provided the prosecution with all the evidence necessary to convict him of the majority of the crimes. In my view, the consequences of the appellant's admissions are that they reduce the need for a sentence to personally deter the appellant, they increase the prospects of his successful rehabilitation and they demonstrate genuine remorse for his actions. I would add that I think it important that the appellant should receive a demonstrable discount in his sentence in order to encourage others to make like admissions.[10]
[10]Ibid.,
72 His Honour also noted that Kirby J in Ryan v R[11] referred to the public interest that attaches to a plea of guilty in revelation of additional offences which would have been difficult to prove without confession and to the importance of a public confession of wrongdoing so that the victims would realise that they were wholly innocent.
[11](2001) 206 CLR at 295
73 The learned prosecutor also referred to the Court of Appeal decision in Dawson v R, Stewart v R[12] where, at paragraph 53, Redlich and Beach JJA stated:
Turning first to the ground that the sentencing judge overlooked the significance of Stewart’s admissions, the right to a significant discount where an offender, by his or her admissions, provides proof of an offence which the prosecution could not otherwise have established, is now well settled. The principle, sometimes described in this State as the Doran principle, rests upon the policy of the criminal law to encourage a guilty person to come forward and disclose both the fact of an offence having been committed and make a confession of guilt of that offence. The ambit of the principle was recently examined in Latina v The Queen. As the Court there noted, it is not a rule to be quantitatively, rigidly or mechanically applied, but where it applies it will ordinarily attract a demonstrable discount in sentence. In JBM v The Queen Weinberg JA, citing Doran, stated that public policy demanded that the appellant receive a significant reduction in any sentence that might otherwise have been imposed.
[12][2015] VSCA 166
74 Finally, in Latina v R,[13] Redlich and Kyrou JJA stated that the Doran principle may also have application 'where the disclosures made by the offender do not relate to a new charge but show that the offence committed was of a more serious order than was known by or would have been discoverable by the investigators.'
[13][2015] VSCA 102 at paragraph [17]
75 The principles just discussed apply to your case and you are to receive benefit for your voluntary disclosure of matters not known to investigating police.
76 I have read the transcript of your interview with police. It is clear from your answers that you were aware that the victim trusted you and that you manipulated her into agreeing to sexual conduct with you, whether that be through persuasion or, in the case of the final act, following what you said was a 'bit of a fight' to do with her reluctance to engage in sexual activity with you. You said that you licked the victim’s vagina and used your fingers to make it as enjoyable for her as you could so that she would want to keep going.
77 You told police that you knew what you were doing was wrong and you needed to stop. However, you did not stop.
78 When you fled the house after you were confronted with the victim’s allegations, you grabbed a scalpel, intending to kill yourself, as you did not want to be caught. You then rationalised that you had done something wrong and that you needed to own up to it. This certainly marks an acceptance by you of your responsibility for your offending.
79 You attended at a police station to hand yourself in. The police station was closed but you spoke to someone over the intercom speaker. You were told that that there was no record of police looking for you. You were told to wait outside while they looked further into the matter. A little later, after receiving a message on your phone from police, you contacted police and waited for officers to arrive.
80 During the interview, you told police you were there to confess, that you were not trying to hide, that you knew what you were doing was wrong, you should not have done it, and that you need to go to gaol and get help. Furthermore, that you did not want to hurt anyone ever again.
81 In his submissions, Mr Reardon stated that your prospects for rehabilitation are guarded. Whilst you have pleaded guilty, made full admissions to your conduct and have no previous convictions, I am not able to make any finding as to your motivation for the offending, other than that of pure sexual gratification. I am not able to make any finding as to the risks of you further offending, or your amenability to treatment, if such be required. I have not had the benefit of any expert report or other evidence that might assist me to better understand your conduct and your prospects for rehabilitation. I do not know whether your prospects are guarded. I am not able to find on the evidence that you have favourable prospects of rehabilitation. No such submission was made.
82 I turn to consider the nature and gravity of your offending. The offences themselves are serious, as may be gauged by the maximum penalty of
25 years’ imprisonment for each offence. As has been said in a number of decisions, the maximum penalty reflects the community's abhorrence of incest offences. Your offending was, without question, serious offending. I consider it all falls within the mid-range level of seriousness.
83 You were taken into the family home by a friend when you were being threatened by a neighbour. She trusted you. You became her partner and stepfather to her children. You repaid her original kindness and trust by sexually abusing her daughter, your stepchild.
84 You also breached the trust of the victim. She was, at all times, a very young and vulnerable child. She was just seven years of age when your offending began. The charged offending spanned the period 1 May 2016 to
24 September 2019. This is a considerable period of time over which you offended against the victim. You had considerable time to stop and reflect on your conduct. Whilst you may have reflected on it, you failed to stop.
85 You were in a position of authority as the victim's parent. You had a responsibility to care for and to protect her. Instead of exercising that responsibility, you betrayed it and betrayed the trust reposed in you for your own selfish, sexual gratification.
86 Your conduct was pre-meditated and manipulative. In the face of resistance from the victim, you sought to persuade her by doing things to her you thought she would enjoy, or by telling her she could only leave the room if she agreed to do as you wanted. In the face of her resistance, you persisted with your offending, knowing that what you were doing was wrong.
87 I find that your ejaculating into the victim’s mouth at the time of the second incident relevant to Charge 4, is a circumstance of aggravation.
88 The enormity of your conduct has resulted in significant harm to the victim and her mother. Your conduct has also impacted on the family unit, as is clear from your former partner's impact statement. I want to make it clear, that the victim and her mother are entirely blameless. Neither should feel guilty about what you did. The victim was no match for your callous manipulation. There was a considerable age difference between you. You took full advantage of the victim's young age and the power imbalance between you.
89 The Court of Appeal has made it clear that the 'sexual abuse of children by those in positions of trust or responsibility with respect to them calls for severe punishment.'[14]
[14] DPP v Amaral [2020] VSCA 290, [33]
90 As was stated by Maxwell P and McLeish JA in DPP v Walsh[15]:
Incest involving a child is an appalling crime. It involves a breach of trust of the most fundamental kind and an inexplicable abdication of parental responsibility. Just as seriously, it involves a cynical exploitation by the parent of the opportunity for sexual contact which being in that position of trust presents.
[15] DPP v Walsh [2018] VSCA 148, [1]
91 Their Honours went on to state that incest of a child is itself a crime of violence. It is also an offence of very high culpability.[16] I can find nothing in your conduct or background that reduces your level of moral culpability. You knew your behaviour was prohibited at law. You knew it was wrong.
[16] Ibid [33]
92 In assessing the seriousness of your offending, I have also had regard to the fact that Charges 1, 2, 4 and 5 are rolled-up charges. The significance of a rolled-up charge was made clear in R v Jones.[17]Through your pleas of guilty to each of those charges, you have agreed to more than one instance of offending being bundled into a single charge. This works to your advantage in that the maximum penalty available is that relevant to the single charge.
[17] [204] VSCA 68
93 Charges four and five are standard sentence offences.
94 The Sentencing Act 1991 requires me to take into account the standard sentence of 10 years as one of the factors relevant to sentencing[18].
[18]Sentencing Act 1991 s.5B(2)
95 In Brown v The Queen[19] the Court of Appeal held that:
[19] [2019] VSCA 286 at paragraph [4].
The key new requirement is that a judge when sentencing for a standard sentence offence must take the standard sentence into account as one of the factors relevant to sentencing. This requirement, the Court stated:
·is to be treated as a legislative guidepost, having the same function as the maximum penalty;
·does not affect the established instinctive synthesis approach to sentencing; and
·does not otherwise affect the matters which the court may, or must, take into account in sentencing.
96 The Court went on to state that:
The standard sentence provisions do not have any bearing on the judge's obligation to assess the seriousness of the subject offence. That assessment remains a necessary part of the process of instinctive synthesis and it is not constrained by the legislative definition of objective factors. Those constraints are referable only to the assessment which gives content to the hypothetical offence as an offence in the middle of the range of seriousness.[20]
[20] Ibid at paragraph [7]
97 Furthermore, for Charges 4 and 5, the only previous sentences to which I may have regard when considering current sentencing practice are sentences imposed under the standard sentencing regime itself.
98 I have had regard to the current sentencing practice in respect of all charges on the indictment. However, as was made clear in Dalgleish,[21] current sentencing practice is one of a number of factors to which I am to have regard under s.5(2) Sentencing Act 1991. It is not a controlling factor.
[21]DPP v Dalgliesh [2017] HCA 41; (2017) 262 CLR 428
99 I am also mindful of what was relatively recently said by the Court of Appeal in Grantley[22] that sentences for incest offences of mid-range seriousness were disproportionately low and called for sentences to be increased.
[22]Grantley (a pseudonym) v The Queen [2018] VSCA 112
100 There are very few standard sentencing cases for the offence of sexual penetration of a stepchild contrary to s.50D(1) Crimes Act. There are many more relevant to the offence of incest contrary to s.44(2) Crimes Act. The latter sentencing cases I make clear are relevant only to the first three charges on the indictment.
101 The sentences to be imposed must act as a deterrent to others who are minded to commit such crimes against children. Such persons should understand that offences of incest and sexual penetration of a stepchild will be met with stern punishment. The sentences must also mark the community’s firm denunciation of conduct of this kind.
102 There is also a need for specific deterrence in this case, despite your cooperation and admissions, and despite your lack of previous convictions. The sentence to be imposed must deter you from committing similar offences in the future. I am not in a position to find that you have favourable prospects of rehabilitation that would lessen the need for specific deterrence. You have shown an inability to refrain from committing offences, despite your awareness of your wrongdoing, over a considerable period of time.
103 There is no issue that you should be sentenced to a term of imprisonment in respect to each of the charges. Pursuant to s.6B(2)(a) Sentencing Act 1991, you fall to be sentenced as a serious sexual offender on Charges 2 to 5 on the indictment. Section 6D of that Act requires that the protection of the community be the principal purpose of sentencing for those charges. It has not been suggested, and nor do I considerate it appropriate in this case, that I impose a disproportionate sentence to achieve the protection of the community.
104 Section 6E requires that every term of imprisonment I impose on you be served cumulatively unless I otherwise direct. Whilst effect must be given to that section, it does not exclude the application of the totality principle.
105 I have had regard to the standard sentence as one of the factors relevant to the process of instinctive sentencing on Charges 4 and 5. The individual sentences I am about to impose on Charges 4 and 5 fall below the standard sentence of 10 years. Having regard to all of the matters, I am required to take into account, in sentencing you, including those features that weigh in favour of mitigation of penalty.
Sentence
106 On Charge 1, you are convicted and sentence to a term of imprisonment of six years.
107 On Charge 2, you are convicted and sentenced to a term of imprisonment of five years and three months.
108 On Charge 3, you are convicted and sentenced to a term of imprisonment of six years and nine months.
109 On Charge 4, you are convicted and sentenced to a term of imprisonment of seven years and six months.
110 On Charge 5, you are convicted and sentenced to a term of imprisonment of five years and nine months.
111 It is appropriate that there be cumulation of sentences, given the separate offending, the need for community protection, and giving effect to s.6E Sentencing Act 1991. However, I also have regard to the principle of totality in determining the extent of cumulation in your case.
112 The sentence imposed on Charge 4 is the base sentence.
113 I direct that 12 months of the sentence imposed on Charge 1, 10 months of the sentence imposed on Charge 2, 18 months of the sentence imposed on charge three, and 14 months of the sentence imposed on Charge 5 be served cumulatively on the base sentence and on each other.
114 This makes a total effective sentence of 12 years’ imprisonment.
115 The non-parole period you will be required to serve is the minimum period that I consider justice requires you must serve, having regard to all of the circumstances of your case. The non-parole period must adequately reflect the gravity of your offending and the purposes set out in the Sentencing Act 1991. I set a non-parole period of seven years and 10 months as the minimum term to be served before you become eligible for parole.
116 Had it not been for your pleas of guilty, the sentence I would otherwise have imposed is one of 14 years’ imprisonment with a non-parole period of
11 years.
117 Pursuant to s.18 Sentencing Act 1991 the period of imprisonment reckoned as having already been served under this section is 441 days.
118 Mr Orton, you have been found guilty of more than two Class 1 offences and under the Sex Offenders Registration Act 2004 you are a registrable offender and your reporting obligations are for life.
119 I must inform you, that you must register on the Sex Offenders' Register and I will have handed to you shortly documentation which sets out the requirements under the Sex Offenders Registration Act 2004 and the consequences if you fail to observe those requirements. I will also have forwarded to you a document which you must sign, which acknowledges that you have received the relevant documentation. The prison authorities will ensure that your signed document is returned to this court.
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HIS HONOUR: Mr Singh, are there any other matters?
MR SINGH: No, thank you, Your Honour.
HIS HONOUR: Mr Reardon?
MR REARDON: No, Your Honour. May it please the court.
HIS HONOUR: All right. I think I omitted to make clear the particulars that were required for the suppression order, Mr Singh, you stated what you are seeking.
MR SINGH: Yes.
HIS HONOUR: I said I would make the suppression order but, to be clear, the particulars that will be included in the suppression order are that the names of the prisoner Mr Orton and those of the victim and members of her
family - - -
MR SINGH: Yes, Your Honour.
HIS HONOUR: - - - are suppressed, as is the age of Mr Orton and the areas in which the offences occurred.
MR SINGH: And the description of Mr Orton as a mechanic please, Your Honour, and stepfather.
HIS HONOUR: Yes. Sorry, yes, you're correct. I won't include stepfather, Mr Singh, but I will suppress his occupation as a mechanic.
MR SINGH: Thank you, sir.
HIS HONOUR: No, thank you. Mr Reardon and Mr Singh, may I thank you both for your assistance in this difficult matter. Unless there are any other matters to which I need to attend, I will now adjourn the court.
MR SINGH: As Your Honour pleases.
MR REARDON: May it please the court.
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