Director of Public Prosecutions v Phillips [a pseudonym]
[2016] VCC 1699
•14 November 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BERNARD PHILLIPS [a pseudonym] |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15, 16 June, 31 October and 14 November 2016 | |
DATE OF SENTENCE: | 14 November 2016 | |
CASE MAY BE CITED AS: | DPP v Phillips [a pseudonym] | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1699 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords:
Legislation Cited: Sentencing Act 1991; Crimes Act 1958
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms C. Parkes | Office of Public Prosecutions |
| For the Accused | Mr D. Gray | Mike Wardell Solicitors |
This matter has been anonymised and a pseudonym allocated per the Court’s Anonymisation Protocol to ensure there is no possibility of identification of the accused, victim and family or friends/witnesses.
HER HONOUR:
1 Bernard Phillips[1], you have been found guilty by jury verdict on Indictment E12651514.C of two charges of incest and two charges of committing an indecent act with a child under 16. The maximum penalty for the offence of incest is 25 years’ imprisonment and indecent act with a child under 16 is ten years’ imprisonment.
[1] Bernard Phillips is a pseudonym.
2 These crimes arise out of events which took place between yourself and the victim of your offending, your biological daughter, Emma Phillips[2].
[2] Emma Phillips is a pseudonym.
3 It is not necessary for me to recount in great detail the facts of this matter, as this was extensively examined throughout the course of your trial and also discussed during your plea hearing. It is sufficient, for present purposes, to say that the facts are most serious and disturbing. Your daughter, Emma, was between the ages of 7 and 11 years at the time of your offending, having been born on 7 July 1999.
4 You are 51 years of age at sentence.
5 Further, by way of background to this offending, you were born on 14 March 1965 and, at 28 years of age, commenced a relationship with Joanne Morgan[3], from which there were two daughters, Emma (the complainant) and Rachel[4].
[3] Joanne Morgan is a pseudonym.
[4] Rachel Phillips is a pseudonym.
6 When you separated from Ms Morgan in 2003, you continued weekend access with your daughters, although in 2008 ceased contact with Emma for approximately 15 to 18 months. Following that, your access continued on a reduced basis, effectively as I understood from evidence during the trial, whenever the complainant sought/permitted access.
7 Your offending against Emma occurred at the home you shared with your then partner, Elisabeth Sands[5].
[5] Elisabeth Sands is a pseudonym.
8 I turn to the charges of which you were found guilty by jury verdict specifically.
9 Charge 1, indecent act. On that occasion, you had people over for a barbeque. During that incident you called out to Emma and said you wanted to show her something. As you were both walking down the hallway, you said there was a blanket in your room and asked if she would like it on her bed.
10 Emma went into the bedroom, you closed the door, pulled down your pants and licked her vagina.
11 Someone knocked on the door and Emma was directed to walk out of the room with the blanket and put it on her bed, to act ‘as if that was what had happened’. This relates to Charge 1. You denied that offending. By the jury verdict they were satisfied beyond reasonable doubt the prosecution had proven Charge 1.
12 Turning to Charge 2, this charge of incest occurred in the games room. Emma’s sister, Rachel, had fallen asleep on the couch, Emma was asleep on the floor. You came in, picked Rachel up and put her in her bed then came back and woke Emma. You pulled down your pants and forced Emma’s head onto your penis. You grabbed Emma by the back of the head and, “Shoved her head onto your penis”. Emma said she could not pull her head back or anything as you were holding her head, and that every time she tried to pull back you would pull her head forward.
13 This ended when the front door opened, when Ms Sands got home from her friend’s party. You denied that offending. By the jury verdict they were satisfied beyond reasonable doubt the prosecution had proven Charge 2.
14 Turning to Charge 3. This occurred in the lounge room. Emma had a friend over. As soon as her friend left, it was she and yourself in the house. You acted like you were tickling her but you weren’t, rather you touched her. You put your hand down her pants and were tickling her vagina. Emma rolled away from you as the door opened to the room. She described this tickling as a little different, like you were about to stick your fingers into her or something. It was after the time in the lounge room that you said to her if she told anyone about this, bad things would happen to her. You denied that offending. By the jury verdict they were satisfied beyond reasonable doubt the prosecution had proven Charge 3.
15 Turning to Charge 4, incest. This occurred in Emma’s bedroom when she was playing a dance game she got for Christmas. You entered the room and closed the door. You told her to be quiet, pulled down your pants and “shoved her head onto your penis like it was in the games room”. Emma said you grabbed her hair from the back of her head and moved her head backwards and forwards. Your uncle came to the house. You stopped what you were doing and ran out of the room. You denied that offending. By the jury verdict they were satisfied beyond reasonable doubt the prosecution had proven Charge 4.
16 A significant aggravating feature of your offending is the gross breach of trust, not only of Emma, but also of her mother, who trusted you with her daughter’s care.
17 It is also an aggravating feature of that offending that you threatened Emma that if she told anyone, bad things would happen to her.
18 Your behaviour towards your daughter was despicable.
19 The victim of that offending, Emma, has suffered considerably as a result of it, and I shall return to pass some remarks on that later.
20 You proceeded to trial and denied your offending which, of course, was your right. I am unable however to find you are remorseful for that offending. I note in the recent report of Dr Cunningham, you maintain you did not commit these offences.
21 You have also pleaded guilty on Indictment E12651514.A1 to three charges of indecent act with a child under 16. The maximum penalty for this offending is ten years’ imprisonment.
22 Those offences involved the victim of your offending, Elisabeth Sands.
23 By way of background to that offending, in 2003 you ended your relationship with Joanne Morgan, the mother of Emma, and then commenced a relationship with Elisabeth Sands. There were two children of that relationship, which ultimately ended in 2012.
24 Elisabeth was born on 30 May 1987. She lived with her family at various addresses in the Ballarat area, and was introduced to you through family associates when she was approximately 12 years of age and you were about 34 years of age.
25 At the time she met you, you were in a relationship with Ms Morgan and had had your two children, Emma and Rachel. Elisabeth would often babysit the children or go to your home for social visits with other family and friends. You became friends with Elisabeth’s family and would often visit their home.
26 Elisabeth was between 14 and 15 years of age during the period of your offending.
27 When Elisabeth was 14 years of age you began touching her by brushing your hands over her breasts and vagina, that having occurred on a number of occasions over a few months. This is other sexual misconduct acts.
28 I turn to Charge 1. Elisabeth Sands was living with her parents. On an occasion between the dates in the indictment, when Elisabeth was 14, she was at your home when you leant over and kissed her, inserting your tongue into her mouth. She pulled away from you, but you leant in towards her again and inserted your tongue into her mouth.
29 Charge 2 is a representative charge of three occasions when you touched and rubbed Elisabeth’s vagina. The first occasion occurred when you were at her home. You took her to a paddock where you put your hand down her pants and tried to take her pants off. Elisabeth told you not to do that. When your hand was in her pants you rubbed your hand up and down on her vagina on the outside of her underpants.
30 The second occasion relied upon involved you and Elisabeth on a motorbike ride around Scarsdale. On this occasion you took Elisabeth from Redan to Snake Valley, and during the ride reached around to Elisabeth, who was seated on the back of the motorbike, and with one of your hands, rubbed her vagina on the outside of her clothing.
31 The third occasion relied upon as part of Charge 2 involved an incident when you and Elisabeth were in the bush near Scarsdale riding a motorbike. You stopped the bike, told her to get off, and then touched her on the vagina on the outside of her clothing, and rubbed your hand up and down over her vagina. You ceased that activity when others arrived, and you and Elisabeth then got back onto the motorbike and left.
32 Turning to Charge 3. That offence occurred at your home in Redan. Elisabeth was staying overnight to look after your two children.
33 Elisabeth slept on the lounge-room floor, and during the night you went to the kitchen to get a drink, wearing only your underwear. You walked into the lounge room, sat beside her, kissed her, and took off her boxer shorts. You lay on top of her, and pushed your groin area into her groin area, and moved your erect penis against her vagina. Elisabeth told you to stop, but you kept going. You told her to be quiet, as Ms Morgan might hear. You then heard a noise, got off her, and kissed her on the cheek. Ms Morgan came out of the bedroom and saw you kiss Elisabeth.
34 On 30 May 2003 Elisabeth turned 16, and after she turned 16 you and she continued your relationship. When Elisabeth was nearly 18 years of age you were openly in a relationship, and living together in Ballarat.
35 Towards the end of Year 9 at school, when Elisabeth was 15 years of age, she disclosed your offending to her friend Cristina Newman[6], and on 22 March 2013 Elisabeth reported the matter to police.
[6] Cristina Newman is a pseudonym.
36 On 17 February 2014 you attended Mildura Police Station after being contacted by police, were arrested and later charged.
37 Your offending resolved to this plea indictment on the day your trial was to commence on 15 June 2016. Your plea of guilty was therefore entered late in the piece, in essence at the door of the court as a jury was about to be empanelled.
38 You have, however, pleaded guilty to the charges involving Elisabeth Sands, and you are entitled to have that fact taken into account in your favour, and I do so. The community has by your plea been spared the time and cost of a trial, and witnesses, in particular Elisabeth, have been spared the ordeal of having to give evidence upon your trial. Your plea of guilty is evidence of remorse by you, although given the late stage of you entering your pleas of guilty, I question whether it indicates real remorse, although I hasten to add that I do not find you are not remorseful. I am simply unable to quantify further your remorse other than to say I accept your plea of guilty indicates some remorse for your offending.
39 Your offending against Elisabeth also involved a breach of trust of her parents.
40 You have previously appeared in court for criminal offending. In 2004 at Ballarat Magistrates’ Court you were charged with two charges of assault and were sentenced on each charge, without conviction, fined $500.
41 Regarding previous charges dealt with in 2004, they involved your ex-partner, Joanne Morgan, and I accept that neither of the victims of the two assault charges was Ms Morgan, and this was discussed with counsel on 31 October 2016.
42 You have a subsequent court appearance relevant when assessing your rehabilitation prospects. You appeared at Mildura Magistrates’ Court on 14 August 2013. Those offences had occurred in December 2012, and involved charges of threat to destroy property, threat to inflict serious injury and assault. Without conviction the matter was adjourned to 14 February 2014 with an order you pay $250 to the court fund. This court appearance was discussed in detail with your counsel during the trial of Emma Phillips, and I will not repeat the details here other than to say those offences involved your then partner Elisabeth Sands, the complainant in your plea indictment. There is nothing pending and I note you have not previously served any term of imprisonment.
43 Mr Gray, who appeared on your behalf at your trial and plea hearing, conceded that both sets of offending (Emma Phillips and Elisabeth Sands) were serious, and both involved a breach of trust. In relation to Elisabeth, she would babysit your children, and as such there was a breach of her parents’ trust in you, and he is correct.
44 Regarding Elisabeth Sands, Mr Gray urged in relation to Charges 2 and 3 that, given the date span of the charges, it was possible Elisabeth was 15 years of age at the time you committed those offences, and I accept that is so.
45 Mr Gray also submitted regarding your offending involving Elisabeth, that none of your offending involved actual skin to skin contact between yourself and Elisabeth (except Charge 1), and I also accept that to be so.
46 Mr Gray urged your offending against Elisabeth fell at the lowest end of the spectrum of gravity. He also submitted, and I am aware, you were subsequently in a ‘family’ relationship with Elisabeth with two children of that relationship.
47 At the commencement of the initial plea hearing Mr Gray confirmed he wanted to obtain a psychological report to address a number of issues including, I assumed, your risk of re-offending, rehabilitation prospects, and to hopefully provide some insight into your offending, and whether any of the principles in R v Verdins & Ors[7] and in particular restatement of the Tsiaras[8] principles 5 and 6, applied. Opportunity was given to him to obtain that material. In fact, I encouraged such, as it would be of assistance to me in understanding your offending behaviour involving these two victims. The report of Dr Cunningham was subsequently tendered at your further plea hearing on 31 October 2016.
[7] (2007) 16 VR 269
[8] [1996] 1 VR 398
48 I was told something of your personal circumstances and history by Mr Gray, and as I have said, you are 51 years at age of sentence, and you grew up in the Mildura area. Your father was a TV technician. Your mother worked in the home and also on citrus properties.
49 You described your mother as ‘gentle as a lamb’, and of having a close relationship with her. You described your father as a disciplinarian, ‘hard but fair’. You did not suggest there had been any allegations of sexual molestation of you in your childhood.
50 You have two sisters and three brothers. In your early childhood the family moved a lot, and as a result you attended a number of schools, finally Mildura Technical School where you finished Year 11.
51 You then worked on citrus properties for three years, before moving to Tasmania. You were described by Mr Gray as, and I accept, hardworking, having been in various forms of employment until 2013 when charged with these offences.
52 Your other past employment was at a Ballarat meatworks for six months, until you were about 19 years of age, then for six years at Dunstown in the agricultural industry, then truck driving. You spent seven years with Caledonian Transport.
53 Your most recent employment was at Star Trak, and Mr Gray, from discussions with the manager of that firm, said you were held in high regard. You spent three to four years at Star Trak, leaving when charged with these offences in 2013.
54 There is one remaining child of your relationship with Elisabeth Sands, your son having died in 2014 following an illness. His death remained of great distress to you. You were precluded from attending your son’s funeral due to the bail conditions imposed for your offending before me.
55 You had interests in air-brush painting, motorcycles and golf, and in the future would like to become involved in panel beating. To that end you had enrolled in a TAFE course at Mildura studying panel beating and were halfway through that course. By virtue of your study to date, you were a qualified spray-painter, and you hoped to be able to continue study in custody.
56 You had in the past seen a doctor for anti-depressant medication.
57 I expressed my concerns regarding your offending as having occurred with a family friend and your own daughter, both underage, whilst you were otherwise in an age appropriate relationship. I hoped a psychological report might provide some insight/explanation for your offending.
58 I received a report prepared by Dr Aaron Cunningham dated 11 August 2016 who you saw at Hopkins Correctional Centre on 28 July 2016.
59 Dr Cunningham also referred to your background and history, in which you confirmed your strong emotional connection to your mother but of not being close to your siblings.
60 You left the family home when you were 17 years of age and lived with your sister and then with your brother, then your partner, Helen[9]. That relationship lasted for approximately six years, and your next relationship was with Michele[10] for a period of two years.
[9] Helen is a pseudonym.
[10] Michele is a pseudonym.
61 Your next relationship with Joanne Morgan was for seven to eight years, she being 14 years younger than you. There were two daughters of that relationship. You did not describe that relationship in glowing terms.
62 It was after that that you formed your relationship with Elisabeth Sands, which lasted for approximately eight years, she 22 years your junior. There are two children of that relationship, a daughter now 8, and your son, who died at the age of 4 in 2014.
63 You had most recently been in a relationship with Ingrid[11] for the past three-and-a-half years. You described her as offering you structure and support, and your plan was to live with her when released from custody.
[11] Ingrid is a pseudonym.
64 You denied any alcohol or drug abuse.
65 Turning to your mental state assessment, you said you had been depressed for several years and that began when you were with Ms Morgan. In the opinion of Dr Cunningham, you presented with Major Depressive Disorder.
66 Psychometric testing was conducted to assess your level of cognitive functioning (p.3). You IQ was assessed as 81 and your overall thinking and reasoning skills fell into the “low-average” range.
67 Turning to his summary and opinion, your depressive symptoms began in your relationship with Ms Morgan. That relationship lacked stability and emotional support and not surprisingly your depression escalated after the death of your son.
68 Forming any conclusion regarding a diagnosis of paedophilia, Dr Cunningham said this was complicated by your denial of sexual behaviour with Emma and of you denying sexual fantasies regarding pre-pubescent children. You did, however, meet the criteria for paedophilia on the basis of the charges against Emma. You understand the wrongfulness of engaging in sexual behaviour with underage individuals. Any sexual distortions, in the opinion of Dr Cunningham, would have to be addressed through sex offender treatment.
69 There were a number of protective factors noted by Dr Cunningham that may reduce your risk and improve your rehabilitation prospects. He referred to your supportive relationship with Ingrid, and that you had insight into the wrongfulness of your behaviour. Further, you were attempting to engage in courses and training whilst in custody and had a positive perception regarding counselling and were motivated to engage in treatment. Mr Gray submitted you had undertaken a number of courses, however you did not yet have any certificates to produce to the Court as yet.
70 Dr Cunningham thought you would benefit from psychological intervention to treat your Major Depressive Disorder. Stable relationships and employment would reduce your risk and positively predict rehabilitation.
71 Mr Gray submitted the diagnosis of Major Depressive Disorder enlivened principles 5 and 6 in Verdins.
72 I discussed this with both Mr Gray and the prosecutor, Ms Parkes. The prosecution submitted there was insufficient material within the report to enliven the Verdins principles. I agree, however, I can and do take into account consistent with general sentencing principles that you will find your time in custody more difficult than a prisoner without this disorder, and as such have mitigated your sentence accordingly.
73 There are three Victim Impact Statements before me. I have read them. Emma Phillips, Joanne Morgan and Elisabeth Sands have suffered considerably in the manner described in their statements as a result of your offending.
74 Emma said she had lost her "bond" with you. Your offending had affected her relationships, school and family. She ate more, and fought with siblings. She felt "at fault". She was scared when in public that someone would say something to hurt her. She was an angry person. She got into trouble at school. She tried not to show signs of weakness. At times, even now, she sometimes "shuts the world out".
75 Emma’s mother (your ex-partner) also prepared a Victim Impact Statement. She felt she had let her daughter down, and they had difficulty discussing your offending. Emma was "picked on" at school because they knew of your offending towards her. Ms Morgan felt unable to help Emma. You were meant to protect her. She referred to the difficulties of now being a "single parent". She was angry this happened to Emma. She felt she and Emma were "let down" by you.
76 Elisabeth Sands, in her Victim Impact Statement, described herself as now hyper-vigilant, ashamed and disgusted. She lacked trust, was in fear for her safety and had withdrawn from friendships/relationships. She had difficulty sleeping and had nightmares, flashbacks and depression. I note many of the physical injuries do not apply to the charges before me. She described anxiety and panic attacks and the adverse impact of your offending upon her. I repeat I am mindful of the specific charges and the offending to which you have pleaded guilty.
77 There was a report from Susan Culhan, Family Therapist, dated 28 June 2016, referring to intimacy issues faced by Elisabeth Sands. There was a report from Dr Patrick Moloney dated 23 June 2016, which I have also read, again mindful as I am of the actual charges to which you have pleaded guilty that are before me.
78 Also relevant is the notion of social rehabilitation. A number of authorities have referred to the effects upon a victim of offending, including DPP v Toomey[12], in which Vincent J referred to social rehabilitation citing DPP v DJK[13], (allowing for the difference in factual circumstances in those cases to the present case):
“… each of the victims [and again I note that there are different circumstances in this case to those], including N, asserted in their victim impact statements that the effect of the offending upon him was to "profoundly and permanently psychologically [scar] him and in a tangible way, has affected many aspects of [his] behaviour".
[12] [2006] VSCA 90
[13] [2003] VSCA 109 [18] and [19]
79 His Honour went on:
"With respect to those statements, I repeat comments that I have made as a sentencing judge on more than one occasion. They constitute a reminder of what might be described as the human impact of crime. They draw to the attention of the judge who would of necessity have to consider the possible and probable consequences of criminal behaviour, not only its significance to society in general but the actual effect of a specific crime upon those who have been intimately affected by it. The statements provide an opportunity for those whose lives are often tragically altered by criminal behaviour to draw to the court's attention the damage and sense of anguish which has been created and which can often be of a very long duration. For practical purposes, they may provide the only such opportunity. Obviously the contents of the statements must be approached with care and understanding. It is not to be expected that victims will be familiar with or even attribute significance to the many considerations to which a sentencing judge must have regard in the determination of a just sentence in the particular case. Nor would it normally be reasonable or practicable for a sentencing judge to explore the accuracy of the assertions made. Nevertheless, there has been an increasing level of appreciation by the courts of the value of victim impact statements. In my view they play an important role with respect to an aspect of the criminal law to which reference is not often made. They play their part in achieving what might be termed social and individual rehabilitation. Rehabilitation, in this sense, is not perceived from the perspective of the offender, but from that of those persons who have sustained loss and damage by reason of the commission of an offence.”
80 The effects upon a victim are a relevant sentencing consideration (s.5 Sentencing Act1991). But I am conscious, however, I must not allow the effects upon a victim to swamp the sentencing process.
81 Turning to risk evaluation, Mr Gray conceded there was an element of risk of future sexual offending by you based on the report of Dr Cunningham, despite Dr Cunningham not specifically categorising that risk. In my opinion, there is an aspect of future risk, based upon his diagnosis of paedophilia and Dr Cunningham’s reference to your sexual distortions that would need to be addressed through a sexual offender program. That process is yet to occur.
82 I discussed the recent decisions of DPP v Clunie[14] and DPP v Dalgliesh[15] at some length with both counsel, and the transcript will reveal that discussion. Dalgleish related to current sentencing practices for the offence of incest and Clunie to other sexual offences involving children. But again, I am conscious and note the different factual circumstances in each of those cases to yours.
[14] [2016] VSCA 216
[15] [2016] VSCA 148
83 In Dalgleish the Court said:
“Sentences for incest offences of mid-range seriousness must be adjusted upwards. That is a task for sentencing judges, and on appeal, for this Court. The criminal justice system can be, and should be self correcting … and sentencing courts must, by increments, increase the sentences for mid-range incest offences, so that the range of sentences is uplifted and substantially expanded.” [128] and [131]
84 The prosecution sought time to address whether or not the principles stated in Dalgliesh applied when sentencing you, given the chronology of this matter.
85 I received written submissions from the prosecution and have read those.
86 In brief, the prosecution submitted you were found guilty on the trial indictment relevant to Emma on 14 June 2016, the decision of Dalgleish handed down on 29 June 2016 and Clunie on 14 September 2016.
87 The prosecution submitted yours was initially a plea of not guilty with a finding of guilt relevant to Emma, and that potential consideration of fairness arising out of the plea of guilty therefore did not apply.
88 The prosecution submitted, and I accept that, "A person who pleads not guilty prior to uplifted sentencing practices may be sentenced may be sentenced with respect to these practices if sentence is imposed after the uplift", citing Poyner v R[16] and Ashdown v R[17].
[16] (1986) 17 A Crim R 162
[17] [2011] 37 VR 341
89 The prosecution also submitted whilst in your case uplifted current sentencing practices applied, the principle of "equal justice" in Stalio v R[18] may require the Court to take into account sentencing practices that existed at the time of the offence in arriving at a just sentence. I am aware of all these authorities.
[18] (2012) 46 VR 426
90 See also Harrison & Rigogiannis[19] (referrable to a plea of guilty), and of course it was a plea of not guilty in your trial indictment.
[19] (2015) 74 MVR 58, [49]
91 In Dalgleish the Court also observed:
“It is well recognised that existing sentencing practice does not constrain a judge from imposing a higher or lower sentence than the prevailing practice. The highest case does not create a ceiling, nor the lowest a floor, beyond which sentences cannot go.” [118]
92 I also received written submissions from Mr Gray, and I discussed those also with them today. He maintained those submissions in his documents, as did Ms Parkes in her submission.
93 In submissions on sentence, Ms Parkes described your offending, especially involving Emma Phillips, as very serious. That Emma was between 7 and 11 years of age, and your offending occurred over an extended period of time and also involved "other sexual misconduct".
94 Ms Parkes conceded the offending against Elisabeth Sands was less serious, however she was young and you manipulated her. I agree with those submissions.
95 Mr Parkes submitted there was the need for general and specific deterrence and denunciation of your offending.
96 Charge 2 on Indictment E12651514.A1 is a representative charge. As such R v SBL[20] is relevant.
[20] [1999] 1 VR 706
97 In SBL, Batt JA said:
“Not only does the fact that a count is agreed to be representative preclude its 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.”
98 More recently, in R v CJK[21], Warren CJ of the Supreme Court considered the Victorian authorities and concluded that, "I should say, I do not consider the representative charges seen as aggravating per se, and nor should the representative nature lead to an inappropriate sentence.” The Court is permitted, however, to look at the "whole picture’, in determining the appropriate sentence "and the representative nature of the representative counts is more likely to lead to a greater sentence than would otherwise be imposed" (para 55 of her Honour's reasons). This is reflective of the impact on the victim of a representative count, which is highly likely to be greater than for the victim of a single comparable count.
[21] (2009) 22 VR 104
99 Relevantly, her Honour stated:
“However, a sentencing judge is permitted to look to the whole picture, including the conduct which is represented in the count. In light of that conduct, the sentencing judge imposes the appropriate and just sentence in all the circumstances. If those circumstances render the offence more serious and lead to a higher sentence than would otherwise have been imposed in the absence of the representative nature, then it is not unreasonable or erroneous to observe it as an aggravating feature, even if only ‘colloquially’”. [58]
100 Her Honour thus accepted that "representative counts may form the basis for a higher sentence than that which would have been imposed for a single charge" (para 46).
101 Also when sentencing you, ss.6A-6F Sentencing Act1991 are applicable as you fall to be sentenced as a serious sexual offender following the imposition of sentences on Charges 1 and 2 on Indictment E12651514.C, ie: trial indictment.
102 Pursuant to s.6D of the Act I must, when sentencing, have regard to protection of the community from you as the principal purpose for which the sentence is imposed.
103 To achieve that purpose, I may impose a sentence longer than that which is proportionate to the gravity of your offending.
104 The prosecution did not urge a disproportionate sentence, and I consider I am able appropriately sentence you without the need to impose a disproportionate sentence.
105 I also discussed with counsel the principle of totality when sentencing as a serious sexual offender, referring to R v HMcL[22]:
[22][2000] HCA 46 [76]
106 The Court of Appeal recently confined and addressed R v HMcL[23] in Dalgliesh (paras 158-160).
[23] (2000) 174 ALR 1
107 As well as matters personal to you, to which I have referred, including your prospects of rehabilitation, of which I have guarded optimism hopefully improved with sex offender treatment, I must also take into account matters such as deterrence, especially general deterrence, which is of considerable importance in a case such as this.
108 Offences against children are regarded very seriously by the Courts and reflected in the maximum penalties determined by Parliament.
109 In PG v R[24], for example, the Court of Appeal referred to sexual offending by a parent with their child:
“There are many obligations of parenthood. Those persons who have relevant expertise will also have a greater claim than judges to give detailed consideration to these; but about one obligation there can be no doubt. Parents must refrain from the knowing infliction of unnecessary harm upon their children. The appellant was criminally in breach of this fundamental duty. The gravity of his offending is of particular importance in deciding upon the appropriate sentence.”
[24] (2013) VSCA 9
110 Whilst the offences for which PG was to be sentenced differ in many respects from those before this Court, the seriousness with which Courts regard a parents’ sexual abuse of their own children is nevertheless, in my opinion, apt when sentencing you for the charges before me.
111 The insidious nature of sexual offending against children generally has been frequently referred to by the Courts over the years (see Clarkson v R[25], Roosmalen[26], Wayland[27], Parente[28], DPP v DJK[29] and Di Nardo[30]. This list is by no means exhaustive or current.
[25] [2011] VSCA 157
[26] (1989) 43 A Crim R 358
[27] 14/9/1992 CA Victoria
[28] 20/2/1996 CA Victoria
[29] [2003] VSCA 109
[30] [1998] 2 VR 493
112 In Sutton v The Queen[31], the Court referred to the offence of incest, and the Crimes (Sexual Offences) Bill as ‘the exploitation of power within the family’, and most recently in Dalgliesh and Clunie, the Court has confirmed the seriousness of sexual offending, specifically incest, as well as other such offending against children.
[31] [2015] VSCA 251
113 There is no doubt the Courts have a special and precious duty to protect children. Children are vulnerable and especially vulnerable to abuse of trust. They are immature in their understanding of right or wrong and are dependent upon adults not to abuse that immaturity.
114 There is also the need for specific deterrence when sentencing you. You have a prior court appearance in 2004, although I note, not for the same type of offending (ie: not sexual) as that before me. I also note, however, that your offending involving Emma Phillips occurred on four separate occasions, that is, was not an isolated incident, and your offending involving Elisabeth Sands involved five separate occasions when you offended against her, reflected in the three charges, as I have already discussed. There were two victims. There is a need for specific deterrence when sentencing you.
115 I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your reoffending. I remain concerned about this, albeit your level of risk has not been specifically addressed in the report of Dr Cunningham. Obviously meaningfully participate in sexual offender programs offered to you, and when undertaken by you, will reduce your risk of re-offending.
116 I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and generally to impose a just punishment, and I sentence you as follows.
117 Turning to trial Indictment E126515214.C.
118 On Charge 1, you are convicted and sentenced to 2 years and 6 months’ imprisonment.
119 On Charge 2, you are convicted and sentenced to 5 years’ imprisonment.
120 On Charge 3, you are convicted and sentenced to 3 years’ imprisonment, and from now on, of course, serious sex offender provisions apply.
121 On Charge 4, you are convicted and sentenced to 6 years’ imprisonment.
122 Turning to plea Indictment E126515214.A1.
123 On Charge 1, you are convicted and sentenced to 6 months’ imprisonment.
124 On Charge 2, you are convicted and sentenced to 14 months’ imprisonment.
125 On Charge 3, you are convicted and sentenced to 10 months’ imprisonment.
126 Charge 4 on trial Indictment E126515214.C is the base sentence, and because this is sexual offender, I need to change the wording. So listen carefully now for the cumulation and concurrency.
127 I direct that 1 year and 6 months of Charge 1 on Indictment E126515214.C, be served concurrently and 12 months cumulatively upon Charge 4 on that Indictment.
128 I direct that 3 years of Charge 2 on Indictment E126515214.C be served concurrently and 2 years cumulatively upon Charge 4 on that Indictment.
129 I direct that 22 months of Charge 3 on Indictment E126515214.C be served concurrently and 14 months cumulatively upon Charge 4 on that Indictment.
130 Now turning to the Indictment E126515214.A1 I direct the following in relation to cumulation and concurrency.
131 That 4 months of Charge 1 on that Indictment be served concurrently and 2 months cumulatively upon Charge 4 on Indictment E126515214.C.
132 That 6 months of Charge 2 on that Indictment be served concurrently and 8 months cumulatively upon Charge 4 on Indictment E126515214.C.
133 That 5 months of Charge 3 on that Indictment be served concurrently and 5 months cumulatively upon Charge 4 on Indictment E126515214.C.
134 That results in a total effective sentence of 11 years and 5 months and I direct that you serve a period of 9 years before you are eligible for parole. We will come back to all that and make sure everyone has got the figures worked out.
135 For clarity, the orders for cumulation are upon each other and upon the base sentence.
136 I do not need to make a declaration pursuant to s.6AAA Sentencing Act1991 on the trial indictment, as of course you proceeded to trial with regard to Emma Phillips.
137 However, turning to Indictment E126515214.A1, had you been found guilty of those three charges of indecent act with a child under 16 following jury verdict, I would have sentenced you to on those three charges to a total effective sentence of 4 years imprisonment with a non-parole period of 2 years and 4 months. I have not added them to anything else. That is just on those offences.
138 Pursuant to s.18(4) Sentencing Act, I declare that you have spent 153 days in custody (up to and including yesterday, 13 November 2016) by way of presentence detention, and I direct that that be entered into the records of the Court.
139 Regarding the charges of indecent act with a child under 16, these are Class 2 offences for the purposes of the Sex Offenders Registration Act2004, and incest is a Class 1 offence. You are, therefore, pursuant to s.6(1) of the Act, a registrable offender, and you must comply with reporting obligations under that Act.
140 Pursuant to s.34(1)(c)(ii) of the Act, the reporting period is life (two Class 1 offences). Mr Gray agreed such classification and duration applied to you.
141 The prosecution made application for an order pursuant to s.464ZF Crimes Act1958 for a forensic sample. Your counsel did not oppose the making of the order. I make the order in the terms sought based on the seriousness of your offending. It will be for a saliva sample and I must advise you the authorities may use reasonable force in order to obtain that sample.
142 I direct it be entered into the records of the Court you have been sentenced as a serious sexual offender on Charges 3 and 4 on Indictment E126515214.C, the trial indictment, and Charges 1, 2 and 3 on Indictment E126515214.A1, the plea indictment.
143 Now, we had better go over some figures again. How did you go with those, Ms Parkes?
144 MS PARKES: They appear to add up, Your Honour.
145 HER HONOUR: So you followed it, did you?
146 MS PARKES: Yes, I did.
147 HER HONOUR: I will go through it again, because it is tricky.
148 I am turning first of all to the trial indictment, 4.C, all right?
149 Charge 1, convicted and sentenced to two years and six months' imprisonment.
150 Charge 2, five years' imprisonment.
151 Charge 3, three years' imprisonment, and as I said, you will note from now on, sentenced as a serious sexual offender.
152 Charge 4 trial indictment, six years' imprisonment.
153 Then, Mr Gray, we go to the plea indictment, and you will know there are three charges there.
154 Charge 1, six months' imprisonment.
155 Charge 2, 14 months' imprisonment. That is the representative charge.
156 Charge 3, ten months.
157 Now, Charge 4 is the base sentence on the trial indictment. That is, the six years is the base sentence. Are you with me so far?
158 MR GRAY: Yes, Your Honour.
159 HER HONOUR: Listen carefully, because I direct one year six months of Charge 1 be served concurrently, 12 months cumulatively. So Charge 1 on the trial is 12 months cumulative on Charge 4.
160 MR GRAY: Yes, Your Honour.
161 HER HONOUR: The next one is two years cumulatively. Charge 2, two years cumulatively upon Charge 4. And Charge 3, 14 months cumulatively upon Charge 4. And I had referred to concurrent as well, but I will leave them out just for the moment.
162 Now we go to the plea indictment, and those three charges. I will just go to the cumulation. Two months cumulatively of Charge 1 goes on to Charge 4. Eight months is cumulatively from Charge 2 onto Charge 4, which is the base sentence from that trial. And five months is cumulatively of Charge 3 on top of the Charge 4 on the trial indictment. How are you going, are you with me?
163 MR GRAY: Yes, Your Honour.
164 HER HONOUR: No, do not say yes if you are not. What is the troubling part?
165 MR GRAY: Plea indictment, that's - trial indictment's fine.
166 HER HONOUR: Yes, got that.
167 MR GRAY: Plea indictment's fine.
168 HER HONOUR: No.
169 MR GRAY: No, in terms of the sentences.
170 HER HONOUR: You mean the original, yes.
171 MR GRAY: Where I start to have trouble following it is in relation to the cumulation. All right, so Charge 4 is the base sentence.
172 HER HONOUR: Correct.
173 MR GRAY: And in terms of the trial indictment, 12 months on Charge 1 is cumulative.
174 HER HONOUR: Yes, correct.
175 MR GRAY: Charge 2, two years cumulative.
176 HER HONOUR: Correct.
177 MR GRAY: Charge 3, 14 months cumulative.
178 HER HONOUR: Correct.
179 MR GRAY: And then you come to the plea indictment.
180 HER HONOUR: Correct.
181 MR GRAY: Two months on Charge 1, eight months on Charge 2, and five months on Charge 3.
182 HER HONOUR: All cumulatively upon each other and upon the base sentence, on top of four.
183 MR GRAY: That's four on Charge 1, on the trial indictment.
184 HER HONOUR: Correct.
185 MR GRAY: Yes, so in terms of cumulation with the plea indictment, we've got three, two, five, six. Six months. That's not right. That's where I'm troubled.
186 HER HONOUR: No, two months is served cumulatively upon Charge 4 of the trial indictment. It was six months for sentence. I have cumulated only two months of that.
187 MR GRAY: So on the plea indictment, what's the cumulation, Your Honour, on the trial indictment in total.
188 HER HONOUR: Well, it is two plus eight plus five. What is that? Fifteen.
189 MR GRAY: Fifteen months cumulative on the - - -
190 HER HONOUR: On four, Charge 4 of the trial indictment.
191 MR GRAY: Yes.
192 HER HONOUR: Now, just see what you come up with.
193 MR GRAY: I come up with ten years, two months, plus 15 months. Does that makes sense? No, it doesn't.
194 HER HONOUR: Well what is that? Work it out, what is that?
195 MR GRAY: It does.
196 HER HONOUR: So what do you come up with? Ten years and two months plus 15 months, what is that?
197 MR GRAY: That's got to be 11 years, five months.
198 HER HONOUR: Well done, that is it. And the non-parole period is nine years.
199 MR GRAY: Yes, Your Honour.
200 HER HONOUR: And I have only declared the s.6AAA in relation to the three charges considered separately, rather than trying to cumulate something that was a potential not guilty, verdict of guilty, you know. That is the 6AAA.
201 All right, now how about PSD? Is everyone right with that?
202 MS PARKES: Yes, Your Honour.
203 MR GRAY: Yes, Your Honour.
204 HER HONOUR: Up to and including yesterday?
205 MR GRAY: Yes, Your Honour.
206 HER HONOUR: Excellent. Anything else that needs to be clarified, apart from signing documents?
207 COUNSEL: No, Your Honour.
208 HER HONOUR: Right, now what is going to happen now, as you know, Mr Gray, just so you understand Mr Phillips, I have made an order that you are on the Sex Offenders Register. You will be on the Sex Offenders Register.
209 Now, all you are going to be asked to do is to sign for receiving the paperwork. You are not being asked if you agree to being on the order, because I have made the order, so that is not what it is. But Ms Jackson has an obligation to hand you the paperwork that tells you all about what it is about.
210 You either sign it. If you do not want to sign it, that is fine, but she is obliged to ask you to sign for receipt only of the paperwork. That is all you are doing. You are not signing saying you are happy to be on it or anything like that. It is just receipt of the relevant paperwork.
211 And because there are two files, there are two bits of paper, so you need to sign both. There are two files as you know. The trial file, the plea file. So there are two of these documents that you are going to be asked to sign. But if you do not want to, that is a matter for you. I just want to explain what it is. Did you want to go back, Mr Gray, while that happens?
212 MR GRAY: Yes, Your Honour.
213 HER HONOUR: And I am making the order for the 464 from mouth as I said I would, i.e., saliva. There are two file numbers. There is the plea file and the trial file. Yes, I know, Mr Gray, cumbersome, isn't it?
214 MR GRAY: Yes, Your Honour.
215 HER HONOUR: Thank you very much, Mr Phillips. Would you mind going out? Thank you. Thank you both for your help.
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