Director of Public Prosecutions v Perera
[2012] VCC 1354
•7 September 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for publication |
AT MELBOURNE
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| P.A.D. |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 June and 29 August 2012 | |
DATE OF SENTENCE: | 7 September 2012 | |
CASE MAY BE CITED AS: | DPP v Perera | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1354 | |
REASONS FOR SENTENCE
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SUBJECT – Criminal law
CATCHWORDS – Sexual Offences – Children – Aged offender with serious medical problems
LEGISLATION CITED – Sex Offenders Registration Act 2004
CASES CITED – WCB v R [2010] VSCA 230; R v RLP [2009] VSCA 271; DPP v SBL [1999] 1 VR 706
SENTENCE – Total Effective Sentence of 5 years’ imprisonment with 3 years’ imprisonment non-parole period – 9 days pre-sentence detention declared – Sex Offender Registration – s.6AAA Sentencing Act 1991 declaration
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms F. Holmes (Plea) Ms L. Dipietrantonio (Further Plea) Mr N. Donaghy (Sentence) | Solicitor for Office Public Prosecutions |
| For the Accused | Mr D. Sexton (Plea) Ms E. Bradley (Sentence) | Leanne Warren & Associates |
Initials have been used in respect of this case in order to protect the victims in this matter.
HER HONOUR:
1 I make the forensic sample order which is consented to by your counsel, Mr PAD. This entitles an authorised officer to take a sample of saliva from your mouth using a cotton swab. If you do not co-operate in this procedure, I should warn you that an authorised officer may use reasonable force to obtain the sample. The purpose for the forensic sample being obtained is to place it on a DNA database.
2 Under the Sex Offenders Registration Act 2004, by reason of your convictions on these offences, you are to be recorded as a registrable offender for life. You must report your personal details to the Chief Commissioner of Police annually for the rest of your life. You must first do so, that is, report, after your release from custody. Details in writing of these reporting conditions will now be served upon you by my associate. I will ask your counsel to assist you in signing an acknowledgement of that notice and have you sign it.
3 PAD, you have pleaded guilty to two charges of indecent act with a child under the age of sixteen years, one charge of sexual penetration with a child under the age of sixteen years, one charge of rape and one charge of indecent assault. The maximum penalty for rape is twenty-five years' imprisonment, while the maximum penalty for the other offences is ten years' imprisonment. Charge 1 - a charge of indecent act with a child under sixteen years; Charge 3 – a charge of rape; and Charge 5 – a charge of indecent assault, are all representative charges.
4 Insofar as the representative charges are concerned, the following statement of Batt JA in DPP v SBL [1999] 1 VR 706 at [70] is pertinent:
“Not only does the fact that a count is agreed to be representative preclude it being said in mitigation that the offence was isolated, it affirmatively enables the offence to be seen in its full circumstantial context. The offender is not, by a loading of the sentence, to be punished for the represented offences, but the sentence for the representative offence may reflect the fact that it, the offence counted, occurred in the wider context. Consistently with the view which I have expressed about agreed representative counts, regard may in the present case be had to the adverse effect upon the victims of the whole of the conduct, which effect might not have been produced, or produced to the same extent, by the offences counted alone.”
I take this approach in sentencing you in relation to the representative charges.
5 The learned prosecutor at the original plea hearing, Ms Holmes, opened the matter on behalf of the Crown as follows.
6 She told me that the complainant, PG (hereafter P) was born on 27 November 1986. At the time that you were arrested and interviewed by the police on 11 September 2011, P was twenty-four years old.
7 The complainant, VG (hereafter V) was born on 7 August 1988. At the time that you were arrested and interviewed by the police, V was twenty-three years old.
8 Both of the victims lived with their mother, DG, at Endeavour Hills.
9 The victims’ father, NG, died of a cancer-related illness on 4 April 2006. N had been diagnosed with cancer in early 2002. He recovered for a short time during 2003, when he was not ill, and then became ill again from 2004 when the cancer spread.
10 The G family are of Sri Lankan heritage, as are you. The victims’ family are part of the Sri Lankan community and have social and family gatherings for important events and occasions. You were one of the family related members, in that the victims’ uncle by marriage is your nephew. Your nephew, L, and his mother, who is the victims’ mother’s sister currently live in Sri Lanka.
11 The victims know you by the name of Arthur Seeya, which means grandfather. This was an affectionate term which they used for you.
12 You were born in Sri Lanka on 20 July 1935. You are a permanent resident of Australia but retain your Sri Lankan citizenship. At the time of your interview with police, you were seventy-six years old. You are now seventy-seven years old.
13 You married your current wife, K, whilst living in Sri Lanka. You and K immigrated to Australia in 1981 and you have two daughters from this marriage. At the time that you were arrested for these matters, you were living at home with your wife.
14 You were a regular visitor to the victims’ household at Endeavour Hills. During the period when the victims’ father, N, was very ill and before his death, you became a more frequent visitor; you also played bridge in the Berwick area on a weekly basis. You would stop in at N and D’s house which was on the way to your bridge club meetings.
15 On some occasions when at their house, you would tell D and/or N that you were going to check on P or V. You would then go to P’s bedroom where P was usually operating his computer when you went in. On some of these occasions, you would sexually abuse P in his bedroom whilst other family members were in the house.
Charge 1 (PG) – Indecent Act with a Child Under Sixteen Years
1 January 2001 – 26 November 2002
Representative charge – (four – five occasions)
16 On four to five occasions between 1 January 2001 and 26 November 2002, you visited the victim’s home and went into P’s bedroom and closed the door. On each of these occasions, you touched P by putting your hand underneath his clothing and touching and stroking his penis. On some occasions, P ejaculated and on others he did not. The victim was fourteen to fifteen years of age during this period and you were sixty-five to sixty-six years of age.
17 For the purposes of sentencing you, I required the Crown to nominate the occasion upon which they relied. The Crown nominated an occasion which is referred to at paragraph 13 of the victim’s first statement at page 32 of the depositions. On this particular occasion which occurred in 2002 when the complainant was fifteen years old, you entered the complainant’s bedroom when he was at his computer desk. You were touching his penis and said that you would like to suck it. The victim did not say anything, explaining that he was shocked and that it was degrading.
Charge 2 (PG) – Sexual Penetration of a Child Under Sixteen Years
28 November 2001 – 31 July 2002
Single occasion.
18 This offending occurred when P had turned fifteen years of age and occurred before he started playing cricket during 2002. This happened in his bedroom at his home in Endeavour Hills. Again, P was at the computer and you sucked his penis. P ejaculated into your mouth. After this, you went to the toilet, then the bathroom where P heard the tap being turned on and running. After this, you went into the kitchen where either N or D, or both were. P stayed in his bedroom.
Charge 3 (PG) – Rape
27 November 2002 – 27 November 2004
Representative charge (four occasions)
19 Between 27 November 2002 and 27 November 2004, you raped P by sucking his penis on four occasions. The particular occasion relied upon by the Crown for the purposes of sentencing you was an occasion just before Christmas in 2003. Although the Summary of Prosecution Opening alleges that on this occasion P’s cousin had just committed suicide, this was withdrawn by the Crown and I do not sentence you on the basis that this was the situation, or at least a situation known to you, at that time.
20 P had just turned seventeen years old when this particular instance took place. His father, N, was in hospital with a cancer-related illness. On or about 21 December 2003, you went to P’s home with food for P’s father. P’s mother told him to go to the hospital with you. P did not want to go with you as he felt uncomfortable with you. However, P’s mother insisted that he go with you to deliver food to his father.
21 You drove your car to your home in Mount Waverley with P in the front passenger seat. No one was home when you arrived and you took P into your bedroom. You removed P’s pants. P was lying on the bed and had his feet on the ground. You were on your knees between his legs and started sucking his penis.
22 P said that he believed that you had removed your false teeth before performing this sexual act. You kept sucking P’s penis until he ejaculated into your mouth. You then stopped your actions and went to the bathroom. After this, you drove P to the hospital. In pleading guilty to the offence of rape you admit that at the relevant time the complainant was not consenting to what you did and that you were aware that he was not consenting or might not be consenting.
23 The remaining incidents which are represented by this charge occurred in P’s bedroom at his home in Endeavour Hills but I sentence you on the basis that these other occasions did not involve the aggravating feature that attends the sample occasion – that is, in relation to the sample offence in Charge 3, it is an aggravating feature that you chose to offend against the victim whilst he was in a vulnerable position, where you chose to sexually abuse him en route to the hospital where he was to visit his ailing father. The remaining instances of rape do not have this aggravating feature and I bear this in mind in sentencing you in respect of Charge 3, also bearing in mind the approach that is to be taken to representative counts. In essence I sentence you in relation to the sample offence with its attendant aggravating features but in circumstances where it serves to represent the sexual misconduct only, insofar as the remaining instances of rape are concerned.
Charge 4 (VG) – Indecent Act with Child Under Sixteen Years
7 August 2003 – 25 December 2003
Single occasion.
24 This is the only occasion upon which you offended against V. On an occasion when V was fifteen years of age and you were sixty-seven or sixty-eight years old, V went to your home with his father. He was subsequently left alone at the house with you. The two of you were sitting in the living room and V asked you to help him with a university mathematics problem. After you completed the problem, you put your hand on V’s groin area and onto his penis over his clothing. V immediately got up and moved away and subsequently avoided any one-on-one contact with you. In 2008, he told his cousin, PDS, what you had done.
Charge 5 (PG) – Indecent Assault
21 December 2003 – 31 January 2006
Representative charge (two occasions)
25 The Crown said that on two occasions between 21 December 2003 and 31 January 2006, you touched P’s penis under his clothing. At the time, P was aged between seventeen and nineteen and you were sixty-eight to seventy years old. The first occasion was on the same date as the sample occasion in respect of Charge 3 – that is, this occasion occurred in the car on the way to your home in Mount Waverley, prior to you orally penetrating the victim. This is the occasion for which I sentence you in relation to Charge 5 and of course, occurred in the same circumstances as occurred in respect of the rape at your home, which represents Charge 3. Therefore, this offence has the same aggravating feature – which you were prepared to behave in this manner on an occasion when the complainant was in a vulnerable state, on his way to see his ailing father – which you, aware of this situation, and chose to offend against him in such circumstances, aggravates your offending on this occasion.
26 The second occasion occurred in January 2006 when P had just turned nineteen and was home on his own at Endeavour Hills. On this occasion, you touched the complainant on the penis and P became angry and asked why you were doing this and if you were gay. You replied “No, it’s because I love you”. P physically broke away from you and waited for a few minutes until you left the house. As I have already indicated, it is the first occasion to which I have referred that I sentence you on, having regard to the second occasion only insofar as it is relevant in sentencing you on a representative count. Further, it is only the sample count which is alleged to have the attendant aggravating feature, and I sentence you on this basis.
Record of Interview
27 You were interviewed at Box Hill Police Station on 11 September 2011 in relation to the allegations made by each of the victims.
28 During the interview, you made admissions to committing sexual acts against both of the victims.
29 You said in what was a most lengthy interview that as a young boy, while living in Sri Lanka, you were introduced to sexual experiences by older boys. You said that the first of these sexual experiences was without your consent. You admitted that the later sexual experiences which followed from that occasion were with your consent. You said that you developed a “weakness” for sexual “encounters” with boys or men. These sexual experiences involved masturbation and fellatio, and were confined to male-on-male contacts. This was the extent to which the matter was opened but as you are aware, your record of interview was referred to at greater length in the course of the plea and the further plea.
Victim Impact
30 No Victim Impact Statement was provided on the original plea hearing but such a document has since been provided by P. At the further plea hearing, at P’s request, his victim impact statement was read aloud. The impact upon P, against whom you offended on a number of occasions, has been profound. He says that your offending eroded his confidence and abilities at school and that he felt his mental health was severely compromised. He said that the difficulties that he suffered at school went on to afflict him at University, and that his employment opportunities have suffered as a result of this. He said that the sanctity of his home was broken by what you did to him such that it was not a safe haven for him, as it should have been. He says that the happy and loving memories that he has of his home, including memories of his deceased father have been "seemingly eclipsed" by the trauma that you inflicted upon him. What you did to him has impacted upon his capacity to engage fully in his relationship with his girlfriend of 7 years-a relationship which has been sorely tested because of the effects of your offending upon him. P says that he is astonished that he has "made it out" but puts this down to the support of his girlfriend, counsellor and his own immense efforts. It is clear from his victim impact statement that your conduct has had a devastating effect on this young man’s life. P’s brother has not provided a victim impact statement, and so I do not speculate as to the effect your conduct had on him.
31 As your counsel rightly conceded, you have engaged in most serious offending which, overall, spanned a five year period. Mostly, you chose to offend in the sanctity of the victims’ own home and, given the role which you played in the broader family network, your actions amounted to a significant breach of trust. These matters aggravate your offending.
32 You told police that you were ashamed to say that it was a Buddhist priest who first abused you. I was told at the plea hearing by Mr Sexton that in this regard the record of interview transcript is inaccurate where it read “policeman” and should read “Buddhist priest”. You went on to tell police that what was done to you on that occasion was wrong, although you had indicated from previous answers that you did not regard what you did to your victims as abuse. However, you then acknowledged that what you did to the boys was wrong and a breach of trust of both their parents.
33 You appeared to justify your actions on the basis that you perceived no resistance or dislike as to what you were doing to the victims. It would appear that you have since come to a different appreciation in this regard, although according to Mr Cummins, you still struggle with seeing what you did as being sexual abuse. However, I note that at the time that you spoke with police you at least appreciated that what you had done to the boys was a breach of their parents’ trust, that they (the parents) would probably be ashamed, because you had let them down (717 – 718), and you acknowledged that what you did was wrong. I have borne these sentiments in mind when considering Mr Sexton’s submissions and the evidence of Mr Cummins, psychologist.
34 You have no prior convictions and, this offending aside, I accept that you are of otherwise good character.
35 As the letters from your daughters and wife show, you have been an extremely hardworking and high achieving individual who has been a good father to your two fine daughters. Your oldest daughter gave evidence that as they were growing up, you focused a great deal on their education and taught them to be honest and to live with integrity. In her letter to the Court, your daughter, C, said that you taught them to respect the law. She said that you wanted herself and her sister to have a good life and that you had the main role in the household in terms of their education or the person they would go to if they had any problem. At no time did you tell any of your family members what had befallen you as a child and youth in Sri Lanka, which I will refer to later on in this sentence. Your family only became aware of the fact that you were the victim of sexual abuse yourself when you gave your record of interview. Ms F said that initially you did not want to speak about these matters with any members of your family but that slowly, you had begun to talk about your experiences.
36 Ms F, in giving evidence in court, provided a recent newspaper article from a Sri Lankan newspaper, which reports the growing awareness of widespread sexual abuse of children in Sri Lanka – including, by Buddhist priests. The article was tendered on the plea and is Exhibit 2. The article tends to support your assertion that you were sexually abused by a Buddhist priest and by others as you grew up in Sri Lanka. It also bespeaks the fact that such matters have not been exposed or perhaps fully appreciated in your country of birth until more recent times. Perhaps such an approach may have added to your sense, at least as a young man, that what befell you was not something that was to be spoken about and was perhaps something that was to be tolerated.
37 Ms F spoke of the closeness of your family, despite what has now been revealed to them about your offending. Understandably, they are finding it difficult in coming to terms with what you have done. However, Ms F said that especially since you have been seeing Mr Cummins, psychologist, you are much more willing to sit down and talk about your offending. She said that you understood that there are consequences for the victims as well and that you were starting to appreciate the gravity of what you had done.
38 Further, Ms F said that you were aware that you faced a gaol sentence and were concerned to put arrangements in place so that your wife could be looked after. Your wife is dependent upon you to drive, as she does not hold a licence, and she has difficulty with her ankles which makes walking problematic. Mr Sexton did not urge me to take into account family hardship in your case and I understand that alternative arrangements will be made for your wife to attend to daily commitments, in your absence. However, I do take into account that your concern for her and your family will impact upon you during your time in prison.
39 Ms F also spoke of your health which I will refer to in due course as some medical reports were tendered on your plea. Unfortunately, despite heart problems, you continue to smoke and through anxiety caused by the prospect of these proceedings, your smoking have increased, she said at the original plea. Your anxiety has also led to fluctuating sugar levels and diarrhoea.
40 You have had a good reputation in the close-knit Sri Lankan community. Ms F spoke of the difficulties that would flow from the community becoming aware of your offending and the position that your family has been placed in, having to explain to others why you would not be attending the various functions in future. To say the least, the discovery of your offending has resulted in a significant ‘fall from grace’ for you.
41 Mr Sexton said that the victims in this matter regarded you as a well respected elder in the community. No doubt, this dynamic was something that assisted you in sexually abusing them. He said that the sexual contact in respect of P started when he was about fourteen years old, commencing with touching and fondling, and escalating to oral penetration which is the subject of Charge 3.
42 Your counsel made it very clear that in no way did he submit that P consented to any of the sexual conduct that befell him. But it was only when he was nineteen years old that he felt able to strongly vocalise his disapproval which is seen in the final incident concerning him. Mr Sexton reminded me that there was one isolated incident in relation to V when he was fifteen years old. I am most mindful of this and will sentence you on this basis although the sentence must also reflect that you offended against two victims, two brothers who looked to you as a grandfather figure, and whom you chose to abuse.
43 In the most robust record of interview of some sixteen hundred questions, and which occurred over a number of hours, you appeared to be very frank with the police. However, as Mr Sexton said, this was a double-edged sword as it revealed your sense of distorted reality in terms of how you apparently saw your actions. You conveyed to the police that you thought P was consenting to your actions. However, Mr Sexton queried how you could have rationally believed this. He submitted that at the time of the record of interview you had fundamentally distorted views of your behaviour and that you now accept that this was the case. In that record of interview, you referred to being abused as a child and were very frank about this.
44 Mr Jeffrey Cummins, psychologist, gave evidence on your behalf at the plea and further plea. At the original plea hearing he said that he first saw you on 4 October 2011. The purpose of the first consultation was to assess you with a view to seeing if you were amenable to treatment. He gave evidence that he had read the record of interview and had access to the entire hand-up brief. In the ensuing appointments as at that time, which had occurred over the next two to three weeks, he conducted various tests upon you. As at the time of the original plea hearing on 4th June 2012, he had seen you on ten occasions, all being one hour consultations. He said that up until approximately the last three consultations, there had been a focus on making an assessment of you and having you face up to cognitive distortions which you had in relation to your behaviour. Mr Cummins had also spoken with your wife and had spent one consultation with your two daughters.
45 Mr Cummins said that for many years, you had the role in the family of setting standards, including those of morality, but that things started to change in this regard in May 2001. In May 2001, you had cardiac surgery, having had heart problems leading up to this time. Your wife reported to Mr Cummins that for many months after surgery, you had significant problems with memory and organisation and he said that it would appear that you had something of a personality change. Your health problems led to your ceasing employment. You have not been able to work since 2002. Mr Cummins was concerned that you may have suffered some neuropsychological damage, but there was no clear picture of this upon further investigation. He did say that in 2006, you were found to have some white spotting on the brain, however, there was nothing which revealed a clear picture of brain damage which might explain any apparent cognitive difficulties. He said that your premorbid level of intellectual functioning was high although there was evidence of impaired memory, concentration and executive function. Mr Cummins reported that your wife and daughters said you had become more dependent upon them and more passive since heart surgery in 2001. Since this time, your wife had taken a more active role with you becoming far more passive.
46 Upon personality testing, Mr Cummins found that you were depressed and had a gloomy outlook, saying that this existed because of matters quite apart from the discovery of your offending and the likely consequences of it. In this regard, he spoke of your health issues, which he described as "multiple and significant".
47 He commented that your mood fluctuations may well relate to fluctuations in your sugar levels. Despite your psychological state, Mr Cummins had not prescribed anti-anxiety or antidepressant medication, as he felt you were too vulnerable and fragile for him to insist upon this. He had some concerns in relation to suicidality.
48 Mr Cummins said that as of late in the week before the original plea hearing, there had been a shift by you in acknowledging the wrongfulness of what you had done and that you had started to address issues to do with victim empathy.
49 Mr Cummins remarked that it had been very difficult to get you to this point and it was significant that you had started to change in this regard. He said that when he initially interviewed you, you did not take the view that the victims’ consent was a relevant issue, and but for the incident with the Buddhist Priest when you were about 11 years old, you did not regard what had befallen you as sexual abuse.
50 He confirmed that you had advised him that your first sexual contact was at the hands of this Buddhist priest and that at that time, when you were eleven and this sexual abuse occurred, the Buddhist priest was in his mid to late twenties. He said that your father, and after his death, your mother had taken you to a Buddhist Temple and at the age of eleven, you were sexually abused. This was a non-consensual encounter. Mr Sexton said that between the ages of ten and sixteen years, you were involved in various sexual acts with a number of different males. Such sexual conduct included fondling, masturbation, oral sex and simulated sexual intercourse. It occurred while you were at boarding school and at the hands of a family friend. One of the individuals who sexually abused you was a medical student who, in due course went on to become a doctor. Mr Cummins appeared to clarify subsequently, that this male went on to become a medical student, and then a doctor. Mr Sexton submitted that this had happened with such regularity that you came to regard such behaviour as normal as you were growing up in Sri Lanka. Whilst the Buddhist priest was in his mid to late twenties, there were other perpetrators who were also some years older than you. The medical student was six or seven years older than you, so I was told.
51 Mr Cummins confirmed that by your late teens or early twenties, this pattern of behaviour of sexual contact with other males had petered out, but had recurred at about the time of your cardiac surgery in May 2001. In this regard I note that the first offence, a representative charge or four or five occasions, is said to have occurred between 1 January 2001 and 26 November 2002 but I do bear in mind that this is a date range rather than precise dates. In the event, I do not use this matter adversely against you.
52 When asked if your childhood experiences bore a nexus with your own offending, Mr Cummins said that this was unequivocally the case. He said that your childhood experiences had led to significant and chronic distortions which you were able to minimise and rationalise in terms of your own behaviour toward the victims. You had never had treatment or mental health assistance in a bid to correct such distortions before now. He said your childhood experiences were something that you had not shared with anyone – not even with your wife, who was utterly disbelieving that this had occurred without you confiding in her.
53 You reported to Mr Cummins that you took the view that being the recipient of sexual advances by males slightly older or six or seven years older than you, was something that was culturally sanctioned and that this should be seen against a background of having no father figure in your life. In this regard, I note that your father, a school teacher, died of pneumonia when you were about ten years old. Mr Sexton submitted that there were clear similarities between what occurred to you and what you did to the victims. Mr Cummins echoed these sentiments when giving his evidence at the subsequent hearing. He hypothesised that there was a connection between the cardiac surgery, your loss of employment and your criminal behaviour. He opined that there was a connection between what had befallen you when you were a young boy and young man, and your offending - that you reverted to what you had known as a young male, having been desensitised to this as a youth and having regarded such behaviour as normal.
54 Mr Cummins gave evidence that having led an extremely busy and productive academic life, the cardiac surgery and cessation of work had led to psychological regression. You then spent time playing bridge which was a sharply reduced level of daily activity compared with your working life.
55 He said that when he had first seen you, you had no insight into your offending and attempted to persuade him in the first few consultations that your conduct toward the victims was consensual and that this was the way that you had obtained your sexual education. Mr Cummins said that it had taken a great deal of work on his part and that of your legal advisers for some development of insight to occur on your part. He said that he had seen you on the Friday afternoon before the original plea hearing and you had told him that you had informed your bridge partner that you would no longer be able to play as you would be imprisoned for some time. Mr Cummins said that he regarded this a most significant step in you taking more responsibility for what you had done. When he suggested that you obtain a character reference from this person, attesting to the fact that you had told her these things, you arranged for this to happen. Mr Cummins remarked that it would have taken a great deal of courage and bravery to make further contact with someone in such circumstances. A character reference has been provided by IW, your former Bridge partner which verifies the steps that you took. She speaks highly of you and says that you have expressed remorse to her and spoke of the disgrace that you feel you have brought on your family. I also take into account the detailed character references provided by your wife and daughters who also speak very highly of you.
56 At the original plea hearing, Mr Cummins said that at times the relationship between you and he had been strained, as it often appeared to be, to his observation, with your legal team. He said that in terms of your treatment, you were at the beginning of that path. Unfortunately, as Mr Cummins observed, it does appear to be the case that the prison system only turns to sex offender treatment toward the end of a prisoner's sentence. This will necessarily interrupt the treatment that you have been receiving which has just started to bear fruit. Mr Cummins lamented that this is a massive problem in terms of maintaining the gains that have thus far been achieved. Insofar as I can, I take this matter into account in sentencing you.
57 Mr Cummins conducted risk assessments of you – the Static 99 assessment revealing that you were in the low risk category. In respect of his assessment for sexual offending recidivism, he said that when he first assessed you, he placed you in the high moderate range but that in terms of your more recent progress at that time you were moving to the low moderate range. He said that he expressed this assessment guardedly because your treatment process had only just begun and risk assessment may change depending on the availability and timing of further sex offender treatment whilst in gaol. I take these matters into account in sentencing you.
58 Mr Cummins remarked that you have some emerging insight into your offending and have expressed some remorse. He was present when further discussions were held in relation to an aspect of the plea opening on 4 June and noted that you were not resistant in relation to matters that had been a sticking point from the defence point of view in the plea hearing.
59 He gave evidence that your slowing cognitive and executive functioning, low self esteem and apologetic style, would make time in custody for you more difficult than for someone without these difficulties and may well render you more vulnerable in the prison environment.
60 When cross-examined at the original plea hearing by Ms Holmes, Mr Cummins acknowledged that he had seen you initially on four occasions, then rather sporadically thereafter until another four consultations leading up to the time of the plea. He acknowledged that in between the initial consultations and those leading to the plea hearing there had not been much contact in the interim. Mr Cummins said that he viewed the lack of contact during this time as directly reflecting your difficulty in coming to terms with what you had done. He said that after the initial consultation, you had agreed with him that there was little to be gained by him seeing you as at that time. He said that frequency of consultations did increase as the time went on and Mr Cummins was aware that negotiations were taking place in respect of resolving the matter. He said that about four consultations before, he could see that there had been a shift in your attitude such that it would now be appropriate to pursue the treatment side of things.
61 When asked about the evidence of such a shift taking place, he referred to your communications with your bridge partner, that you were increasingly prepared to discuss the prospect of you going to gaol, and your increasing openness with your wife and daughters.
62 In terms of the age discrepancy between you and your victims and the age discrepancy between you and those who sexually abused you, Mr Cummins said that you had not addressed the fact that the former discrepancy was far greater than that of the latter. He said that he had not pushed this issue with you. He said that you were of the belief that there was a degree of psychological comfort to be obtained from being subjected to sexual abuse. Mr Cummins said that you felt that you had been provided with some emotional comfort by being subjected to sexual abuse. However, he said you now accepted that what you did was very wrong. He said that your views about this ought to be seen in the context of you receiving this sort “education” when you were young. He said that you did not believe that you were imparting sexual education to your victims, but rather providing them with some psychological comfort. In sentencing you I do take into account in an adverse way against you the immense age discrepancy between you and your victims.
63 Mr Cummins said that your attitude had changed and that you were no longer resistant to the fact that your beliefs were distorted insofar as the idea that you were giving some sort of psychological comfort to the victims was concerned. He said that your family’s input was integral to you coming to such a view – in particular, your daughters had confronted you repeatedly.
64 Mr Cummins accepted that your growing acceptance of the wrongfulness of your conduct did have something to do with the impending plea hearing. But he said that this was not unusual. However, it did not mean that your shift in attitude was a false one.
65 Mr Cummins observed that your offending was not predatory, but rather it was opportunistic in nature. I accept that this is the case.
66 Further, he said that it was not uncommon for people who had a major life crisis (yours being heart surgery and loss of employment) to coincide with commencement of offending. He said that you did not regard your conduct towards the victims as cheating on your wife and that you had taken the view that your behaviour was acceptable. Upon the further plea of this matter Mr Cummins gave more evidence. When cross examined, he acknowledged that there were incidents which you detailed in your ROI in relation to one male adolescent in particular which suggested that you had engaged in sexual abuse, in 1985 or 1986, before any health scare and before any loss of work. However, Mr Cummins said that it would appear from speaking to you that what was in the ROI misrepresented your position. While there is a good deal of robust questioning of you and a number of answers are indistinct, it does appear to me that you did give an account of sexually abusing a child in the 1980’s. I make it very clear that in sentencing you I only take this matter into account insofar as it tends to conflict somewhat with Mr Cummin’s ‘hypothesis’ that you had recourse to child abuse when your health failed and you no longer worked.
67 As I said in discussion on the plea hearing, Mr PAD, I have some difficulty in accepting that you genuinely believed that your behaviour was acceptable. Whilst I do accept that you may have developed an ethos after being the victim of sexual abuse that assisted you in rationalising your behaviour, the fact that you conducted yourself in secret and acknowledged to police that what you did was wrong and that you had breached the victims’ parents trust, tells me that, at one level at least, you knew very well that what you were doing was not acceptable - but that, in order to continue on with such behaviour, you rationalised to yourself that as this had been done to you, it was all right to behave in such a way to the victims. Whilst I accept that you had a level of distorted thinking in this regard which assisted in you rationalising your behaviour, and that this was based in your unfortunate upbringing, and while I also accept that you are developing insight as to the true gravity of your wrongdoing, I do not accept that you had no appreciation of the wrongfulness of your conduct at the time that you were engaging in it. Certainly you were of the view that what befell you at the hands of the Buddhist priest at least was wrong, which helps to confirm my finding in this regard. You are highly educated man, who had lived in Australia for many years when you sexually abused the victims. You had brought up two fine daughters whom you had taught to behave morally, respect the law and to act with integrity. This is not to say that I do not accept that there is a nexus between your offending and childhood abuse suffered by you. I will come to this in a moment.
68 I take into account your background. You are the youngest of seven children, having been born in Sri Lanka in July 1933. Your father had three children before marrying your mother. All of these children have since died and your two oldest siblings have now passed away. Your remaining four siblings live in Sri Lanka. Your mother died when she was 93 years old, in 1996, and as I have previously said, your father died when you were still a young boy. You were raised by your mother with the assistance of your older siblings.
69 You were a most accomplished student and have had a most distinguished professional career. You attended the local school in Sri Lanka where your father taught and then moved on to the Royal College at Colombo. You won many academic prizes and scholarships due to your academic achievements.
70 You studied at the University of Ceylon, obtaining a Bachelor of Science with mathematics as your speciality. You taught at your old school for two years and then went to the Bank of Sri Lanka in 1958. You took advantage of a scholarship which saw you studying at the London School of Economics where you obtained a PhD in Mathematical Statistics. You obtained a further scholarship which saw you studying at Columbia University in New York. After a brief return to the Bank of Sri Lanka, you obtained two years’ leave, which allowed you to attend the University of Hull in the UK. After this, you returned to the bank where you worked until 1979, enjoying a number of senior positions. You then obtained a job with a finance company in 1981 and you migrated to Australia. You did so in order to obtain a better life for your family.
71 You had married K in 1972, having met her at the bank where she also worked. As I have said, you have two adult daughters, C and I.
72 Both of your daughters were present at Court at the initial plea, as was your wife. One of your daughters and your wife have been here at each of the succeeding hearings. I was told that each of your daughters have double degrees – that C, who is married with two children, works in the public service and I works as an engineer. You have a most impressive work history in Australia as well. You have taken senior roles as a computer and software analyst in a number of companies, including Yakka and Country Road. I have read a number of character references from former work colleagues, who speak very highly of you as a professional and as a person. You have assisted your wife in her study at TAFE which has enabled her to obtain employment.
73 You retired in 2002, which was largely due to your ill health and heart surgery in 2001.
74 Your physical health is not good as you suffer from diabetes which involves you having to inject yourself with insulin on as many as five occasions each day. Because of this condition you have developed glaucoma and partial deafness in one ear. You have a heart condition which has necessitated surgery, which has been referred to on more than occasion. A medical report from Dr Kar-i-ya-was-am dated 21 March 2012 indicates that due to your significant medical conditions you require careful monitoring and must strictly comply with medication. The report indicates that you are not fit for heavy manual work as you suffer obstructive airways disease, ischaemic heart disease and diabetes. You develop shortness of breath on mild exertion and suffer from severe osteoarthritis in your shoulders and have ruptured rotator cuff tendons. You also suffer from constant back pain. The report also states that your wife suffers from hypertension, asthma and diabetes.
75 Your history is noted in that report and I am most mindful of it. You also have numerous medications which are listed as being current medications for your various ailments.
76 Further, a report from Dr Matthew Cohen dated 18 May 2012 was tendered which states that you are being treated by him for Type 2 blood insulin treated diabetes. He says that your condition is under reasonable control at present but that you require an intensive regime, currently five injections per day in addition multiple other medications. He confirms that you have significant eye disease as a complication of longstanding diabetes and you have recently developed a degree of renal impairment. You also have coronary artery disease, requiring bypass grafting eleven years ago, for which you attend Professor Richard Harper. He said that you are generally frail and that you recently fell which resulted in a head injury. Dr Cohen said that due to complex and intensive nature of your diabetes treatment which involves diet, multiple insulin injections and blood glucose monitoring, you frequently require the assistance of your wife – more so as you get older.
77 I accept that you have significant medical conditions which will make your time in gaol more difficult than for those who do not suffer from such ailments. I also accept that this will be your first time in gaol and that due to your psychological state, time in gaol will be more difficult for you for that reason also. I also take into account that you are now seventy-seven years old and that old age and ill health are relevant to the exercise of my sentencing discretion, although they are not determinative of the quantum of sentence. Further, I accept, as I must, that, to quote the Court of Appeal:
“it is a weighty consideration that (an) offender is likely to spend the whole or a very substantial portion of the remainder of their life in custody” and “other sentencing considerations may be required to surrender some ground to the need to exercise compassion to take account of the real prospect that the offender may not live to be released and that the offender’s ill health will make his or her period of incarceration particularly onerous”.
These are principles which are set out in the authority of WCB v R [2010] 29 VR 483 (para 61); such principles had been extracted from R v RLP [2009] VSCA 271. Further, principles were enunciated in WCB, again derived from R v RLP which are as follows:
“Just punishment, proportionality and general and specific deterrence remain primary sentencing considerations in the sentencing disposition, notwithstanding the age and ill health of the offender.
Old age and ill health do not justify the imposition of an unacceptably inappropriate sentence.” (See para 61)
78 I am most mindful of these principles in sentencing you. I also note, however, that such was the nature of your offending which occurred when you were somewhat younger, that you were able to continue to live freely in the community during younger, more active years of your life, with impunity. Meanwhile, your victims, in particular, P, doubtlessly struggled with the trauma of the harm you had inflicted upon them.
79 You pleaded guilty at an early stage of proceedings, notwithstanding complex negotiations which took place and in pleading guilty, you have saved the witnesses, and particularly the victims, the time and trouble of giving evidence and you have saved the community the time and expense of a contested proceeding. Therefore, you are entitled to a substantial discount in the sentence that you would otherwise receive. In this regard, Mr Sexton referred me to another passage from the decision of WCB v R as follows:
“The value of a plea of guilty, particularly in cases involving sexual offences, is well established. Sexual offences are notoriously difficult to prove. Particularly in such cases, a plea of guilty results in a significant benefit to the victim. It relieves them of the need to testify and advances their prospects of recovery. By substantially discounting the sentence in such cases, the court encourages others charged with similar crimes to also acknowledge their guilt.” (Para 48)
I would add to that passage that the acknowledgement by an accused of their guilt rather than having it proved by a jury having to determine the matter is something that can also give the victims some comfort. In all of the circumstances I make a substantial allowance in your case, given the principles I have just enunciated.
80 I accept, as I have already said, that you are of “otherwise good character”, in light of your lack of prior convictions and the character evidence.
81 I accept that you are slowly developing some insight in relation to the gravity of your offending and that you have a commensurate sense of remorse for your actions, and are slowly developing some sense of victim empathy in this regard.
82 You are a man of senior years who has some serious health problems and I have little doubt that gaol will be a most salutary experience for you. Further, because you have no prior convictions and have very solid family support to look to in the future, I regard this as going in a positive way to your prospects of rehabilitation. It is to be hoped that your slow shift in realising the gravity of your offending continues to move in a positive direction and that you continue to gain insight and continue to improve on your sense of remorse with a determination never to even think of committing further offences. In all of these circumstances, I regard your prospects of rehabilitation as quite good, especially in view of the fact that you are in advanced years with poor health, which would make reoffending more difficult, even if you were so minded to commit further offences in the future. I need place little weight on the need to protect the community from you and upon specific deterrence. If you were a younger and fitter man, my assessment as to the weight I would place on such matters would have been slightly different as you have a way to go in terms of your mindset towards your offending.
83 At the original plea hearing, the learned prosecutor, Ms Holmes, submitted that a range of between five to six years with a non-parole period of between three and four years had previously been given in relation to the appropriate sentence in your case. However, that range was then revised to between three to four years with a non-parole period of between two to three years. Mr Sexton did not challenge this range. Indeed, the learned Crown prosecutor indicated that the range was agreed as being appropriate in your case. At that time I put the Crown and Mr Sexton on notice that I did not regard the sentencing range as sufficient. I asked for assistance in terms of current sentencing practice in respect of offending such as yours. Ms Holmes referred me to the sentencing snapshot for rape but acknowledged that none of the statistics were really referable to representative counts for this offence. Still, I have had regard to the statistics concerning rape and the other offences which you have committed to assist me in my determination of an appropriate sentence in your case. I have also had regard to current sentencing practice insofar as I have been able, given the intricacies of your particular case. I must say that I have had difficulty with the proposition that offending in which you have engaged, with its attendant aggravating features might produce the sentencing range which was first given, notwithstanding matters in mitigation. I placed Counsel on notice at that first plea hearing as to the inappropriateness of the sentencing range, and having heard submissions on that day, I listed the matter for sentence. In the interim, Defence requested that the matter be re-listed for further plea, indicating that they sought to recall Mr Cummins and make further submissions at this time. I acceded to this request and on 29 August 2012, the further plea took place.
84 At the further plea hearing Mr Cummins gave evidence that he had seen you on 3 occasions since the initial plea hearing on 4 June 2012, and that there had been some positive developments in terms of your level of insight into your offending. He said that you had reconnected with your Buddhist faith and that you were now attending temple with your wife. In this regard I note from your wife's character reference that this was already the case when she provided a character reference at the first plea hearing. However, Mr Cummins also said that this was of particular significance that you had been re-attending temple and engaging with your faith, in view of the fact that the first person to sexually abuse you was a Buddhist monk.
85 He said that he had told you to disclose the details of your abuse to a priest at the Temple, but you had refused to do this. He was of the view that such a step would be diagnostically beneficial to you. However, Mr Cummins said that you were prepared to speak in more detailed fashion about the sexual abuse which had befallen you as a child and youth, which was also a positive indicator. He narrated the details of the forms of abuse that you suffered at the hands of the Buddhist Priest, which I will not repeat.
86 He reiterated his opinion that you did not regard what had befallen you as sexual abuse and that you still struggled with the notion that what you did to your victims amounted to this, that is, that you did not regard anything save for what had happened at the hands of the Buddhist priest was sexual abuse. He said that the fact that you had never disclosed such conduct to your wife and offended against the two victims away from others was not a recognition that what you were doing was wrong but it was simply a matter of privacy-that you had normalised what had happened to you and had been desensitised in this regard when you were still developing. While I can accept that you were desensitised to such behaviours to some extent, you told police that you regarded what the Buddhist monk did to you as wrong, as I have already said. You also said that you accepted that what you did to the two victims was wrong and that you had breached their parents’ trust. You maintained that you acted with their consent and that if there was resistance or dislike on their part then you would have stopped. It is plain from the record of interview that your definition of consent falls a long way short of the legal definition.
87 Mr Cummins repeated his view at the further hearing, that there was a link between what had befallen you and what you then went on to do to the victims, resorting to this form of activity at a time when you had suffered significant health issues and ceased working. He confirmed that he regarded you as suffering from an adjustment disorder because of your changed circumstances which then triggered your offending. This was said to be a hypothesis on Mr Cummins part as to the reason you reverted to behaviour akin to that experienced by you many years before. The learned Prosecutor on the further plea (who was a different prosecutor to whom appeared originally) adduced in cross examination that such a hypotheses was somewhat weakened in light of answers in your record of interview where you said that you had some sexual encounters with a teenager in 1985 and 1986. After a break in proceedings which I allowed for Mr Cummins to confer with Mr Sexton in respect of these matters, the learned prosecutor indicated that she did not want to take the matters any further. As I have already recorded, Mr Cummins later said that you did not agree that what you had said was accurately representative of your position in that interview. As I have already said, I regarded that you had actually told the police that you had behaved in that fashion in the record of interview with those questions and answers.
88 In any event, Mr Cummins maintained his view that at the time that you offended you were suffering from an adjustment disorder which had contributed to your offending. In this context, Mr Cummins again queried whether you had suffered some neurological damage at the time of the offending, notwithstanding that this was not medically confirmed. To his observation, you had exhibited signs of intellectual deterioration in the time that he had been dealing with you.
89 Ms Dipietrantonio submitted that although the Crown accepted there was a link between the offending and what had befallen you, it was not as strong a one as had been submitted by your Counsel. Further she said that the purported trigger for your recourse to offending was somewhat problematic in view of the matters concerning the other adolescent which had occurred at a time when you were apparently in better health and work was still your apparent focus. Essentially she submitted that I ought not to accede to Mr Sexton’s submission that these matters ought to result in at least a moderate reduction in respect of your moral culpability or specific or general deterrence.
90 In view of the matters raised by the prosecution at the further hearing I asked the learned prosecutor to seek further instructions as to whether the range previously given was still submitted to be appropriate. The learned prosecutor has now made further submissions that in light of the Victim Impact Statement, and the evidence adduced at the further plea in relation to the strength of the nexus and trigger for the offending, as well as your acknowledgement in the ROI that what you did was wrong, the Crown submitted that an appropriate range was between 4 and 5 years head sentence with a non-parole period of between 2 1/2 and 3 1/2 years. When I asked whether the previous range was given without the ROI being considered the learned prosecutor said that she was not sure that this aspect had been flagged with the relevant Crown Prosecutor in the past.
91 At the end of the day, as has been said by both Counsel, a sentencing range is a submission which I am entitled to accept or reject. In the circumstances, I am of the view that the sentencing range now proffered is a far more appropriate one in all of the circumstances of this case-in particular, the head sentence range is more in keeping with an appropriate range in this case.
92 Having considered the evidence and submissions in relation to the nexus between the offending and what occurred to you, I accept that there is a nexus which helps to explain why you behaved as you did and which somewhat reduces your moral culpability and the weight that I would otherwise attach to specific and general deterrence. It appears to me that although you may have somewhat normalised the sexual abuse which you had suffered which enabled you to behave as you did, you still knew that what you were doing was wrong and needed to be done in secret. As I have said you are an educated man and have taught your children to act in a law abiding fashion. I do not accept that the sole motivation for offending against the two victims away from others and without telling anyone was that this was just a private matter between you and them. I do not accept that such behaviour had desensitised you to a point where you thought that what you were doing was acceptable. Again in this regard, I point to what you felt about what had happened to you at the hands of the Buddhist priest. Further, while I accept that there is some contribution of an adjustment disorder which was operating at the relevant time, this matter and your previous experiences reduce your moral culpability to a limited extent. Also, this purported trigger is somewhat impacted upon by the fact that in the 1980s it would appear that you behaved in a similar fashion whilst you were in apparently good health and working. I make some reduction in the weight that I would otherwise attribute to specific and general deterrence in all of the circumstances, including your reduced moral culpability; I must impose a just punishment and denounce your conduct.
93 After considerable thought, in light of the matters which are personal to you - in particular, your advanced years and poor health, I will not impose the upper end of the submitted range in respect of the non-parole period. In this regard, I have taken into account the problems that you have already experienced in gaol whilst awaiting sentence which manifest the degree to which time in gaol will be especially harsh for you at least in one aspect that I have already referred to.
94 Would you please stand up Mr PAD?
95 In relation to Charge 1 you are convicted and sentenced to 12 months' imprisonment.
96 In relation to Charge 2, you are convicted and sentenced to 2 years' imprisonment.
97 In relation to Charge 3, you are convicted and sentenced to 4 years' imprisonment. This will be the base sentence.
98 In relation to Charge 4, you are convicted and sentenced to 8 months' imprisonment.
99 In relation to Charge 5, you are convicted and sentenced to 14 months' imprisonment.
100 Following your conviction on Charge 2, you are to be sentenced as a serious sexual offender and there is a presumption that sentences thereafter will be served cumulatively. But there is no need to impose a disproportionate sentence in your case. However, as the offending in relation to Charge 1 is separate to that in respect of Charge 2 and of a different nature occurring on separate occasions, I take the view that some cumulation as between Charges 1 and 2 is also warranted.
101 I direct that 2 months from the sentence on Charge 1, 4 months of the sentence on Charge 2, 3 months of the sentence on Charge 4 and 3 months of the sentence on Charge 5 be served cumulatively with the sentence on Charge 3, producing a total effective sentence of 5 years imprisonment. I order that you serve three years' imprisonment before becoming eligible for parole.
102 I declare that you have already served 9 days which will be reckoned as part of your sentence.
103 If not for your pleas of guilty, I would have been sentencing you in relation to specific occasions rather than representative charges, so this exercise is somewhat artificial and unrealistic. In any event, on this hypothetical basis, I would have sentenced you to a total effective sentence of 8 years' imprisonment with a non-parole period of 5 years' imprisonment.
104 Anything further, counsel?
105 MR DONAGHY: No, thank you, Your Honour.
106 MS BRADLEY: No, Your Honour.
107 HER HONOUR: Yes, thank you. You may remove the prisoner.
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