Director of Public Prosecutions v Polivos
[2017] VCC 1900
•12 December 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-00710
CR-17-00670
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOHN ROBERT POLIVOS |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 30 November 2017 | |
DATE OF SENTENCE: | 12 December 2017 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Polivos | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1900 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords:
Legislation Cited: Sentencing Act 1991
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr N. Batten | Office of Public Prosecutions |
| For the Accused | Ms G. Connelly | Victoria Legal Aid |
To ensure there is no possibility of identification, this sentence has been anonymised by the adoption of pseudonyms in place of names of the victims and family or witnesses.
HER HONOUR:
1
John Polivos, you have pleaded guilty to five charges of indecent act with
a child under the age of 16 and four charges of sexual penetration of a child under the age of 16. The victims of your offending are Madison Gilbert[1] and Laura Gilbert[2]. The maximum penalty applicable to the offence of indecent act with a child under 16 is ten years’ imprisonment and the maximum penalty for sexual penetration of a child under 16 is also ten years’ imprisonment.
[1] A pseudonym
[2] A pseudonym
2 Charge 1, indecent act with a child under the age of 16, is a course of conduct charge and Charge 9, sexual penetration of a child under 16, is a representative charge.
3 It is not necessary for me to recount in great detail the facts of this matter, as they are on transcript, the matter having been opened in some detail by the learned prosecutor, consistent with Exhibit A. I proceed to sentence you on the basis of the facts, as summarised by the prosecutor and discussed during the course of your plea hearing. It is sufficient, for present purposes, to simply say the facts in this case, in my opinion, are most serious and disturbing.
4 At the time of this offending, you were between 51 and 56 years of age and you are 60 at time of sentence. In addition to being known as John Polivos, you are also known as Rob Richards.
5 The two victims of your offending are sisters and they lived with their parents.
6 Both your victims knew you as a friend of the family under the name “Rob Richards”. You became friends with the victims’ parents when you were working with their uncle in approximately 2002. At that time, you lived in Boronia and from about 2003, you used to stay on weekends at the uncle’s home, attending family gatherings and going fishing.
7 Gradually, from around 2010, you stayed with the complainants’ family and by mid-2013, were staying with the family most weekends, sleeping on the couch in the living room.
8 The parents trusted you with their children, including on occasions when you were alone with one or more of them.
9 When you were staying with the family, you spent time with the complainants’ and their brother, watching movies in the lounge and engaging in other activities, often buying or offering to buy, movies, food, drinks, lollies, iPads and jewellery for the two complainants.
10 Turning to Madison Gilbert, the subject of Charge 1. At the time of that offending, she was approximately 9 to 12 years of age. I will come back to that later.
11 When you arrived at the house on visits, you would give Madison a welcome hug and grab her on the bottom and breasts over her clothes. That conduct later progressed to the course of conduct charge.
12 Charge 1 relates to numerous occasions when you touched and rubbed Madison on and around her vagina, over her clothes, in various settings when she was between 9 and 12. It occurred frequently and at times, you would appear to be concentrating on watching the television.
13 You also did the same thing on five to ten occasions while driving your car with Madison as passenger, when she was 11 and 12.
14 In October and November 2010, at times you were present with Madison when she was doing her homework. You would pull a chair up next to her and offer to help her, where you would again rub your hand over the top of her clothes on her vagina. That occurred on at least five occasions in that scenario.
15 Following the luncheon adjournment during your plea hearing, Mr Batten made further submissions regarding Charge 1 and the basis upon which I should sentence. In making these submissions, he acknowledged the vagueness of some accounts in the VARES and reference to “maybes”.
16 He correctly observed that for a course of conduct charge, the prosecution were not required to prove any particular number of incidents. That is, of course, so. Ultimately, Mr Batten submitted I should sentence on the basis that there had been five incidents in the car, five whilst playing Mathletics and regarding incidents that occurred on the couch, which the complainant described as happening every two to three weeks. He submitted I should sentence on the basis that took place over a period of 12 months for sentencing purposes.
17 Ms Connelly submitted you accepted, regarding Charge 1, in the lounge room, that it was sufficiently frequent to give the complainant the impression it happened over about 12 months.
18 Madison said she felt “freaked out” and stressed by your behaviour towards her and tried to minimise her exposure to you by keeping her distance from you.
19 Laura Gilbert, the second complainant, was between 8 and 12 years of age at the time of your offending and is now 15.
20 Charge 2 relates to an incident on 2 November 2010, at a Melbourne Cup party, held at the complainants’ uncle’s house. At that time, Laura was 8.
21 During the party you took Laura to the creek at the rear of the property to go crayfish fishing. You removed her t-shirt and pants, but not her underwear. You kissed her on her cheek, lips, neck and shoulder. You moved your hand into her underpants and touched her on and around her vagina.
22 You then told Laura to put her clothes back on and you both returned to the party.
23 Turning to Charge 3, Madison and Laura initially shared a bedroom, sleeping in bunks.
24 On a night between 2 November 2010 and 13 December 2013, you went into the bedroom and spoke to Laura, who was on the bottom bunk, for around 30 minutes, then lay in the bottom bunk next to her.
25 You placed your arm around Laura and touched her bra strap. Laura told you she was tired and wanted to sleep. You stopped touching her and left the room.
26 Turning to Charges 4 and 5, you regularly obtained copies of new-release movies and would take them to the complainants’ home and watch them in the lounge room with members of the family. On occasions, you sat next to Laura on the couch while watching the movies, with a blanket covering both of you.
27 Laura’s siblings were often present. Under the blanket you touched Laura’s vagina on five or six occasions while watching a movie. This behaviour provides the context for the charged acts on the couch, to show that those charges were not isolated events.
28 Late one night, probably in late-2010, after her parents and Madison had gone to bed, Laura, her brother and you watched a movie, "Fantastic Mr. Fox". You and Laura were sitting next to each other. During the movie, their brother fell asleep. You put your hands down Laura’s pants and rubbed it over the top of her vagina (Charge 4).
29 On another occasion, you and Laura were watching "Guardian of Owls" on the couch, while their brother and Madison were sitting on another couch. During the movie, you tried to place your hand down the complainant’s jeans, while the complainant was under a blanket lying next to you (Charge 5). As you tried to undo the top button of her jeans Madison whispered “No”. You got up and went outside for a beer and a cigarette and did not return for the rest of the movie.
30 I turn to Charges 6 and 7. On occasions when staying at the complainants’ home, you would visit your own home in Boronia and you would sometimes invite Laura to go with you to feed the cats. Laura went with her parents’ permission.
31 The house was occupied by boarders and you would notify them that you were coming, so they would not be home.
32 Before going to the house, you took Laura to fast-food outlets, buying food as a treat.
33 On an occasion in 2012 or 2013, you took Laura to your home, going to KFC on the way. In the lounge room of your home you gave her a cup out of a glass cabinet and said your daughter wanted to give the cup to Laura.
34 You then took Laura by the arm to your bedroom, pushed her onto the bed, kissed her cheeks and lips and removed her shirt, bra and pants. On this occasion you digitally penetrated her vagina (Charge 6).
35 On other occasions in that house in Boronia, you touched the complainant on her vagina. The charged acts were again not isolated events.
36 On the last occasion at your home in Boronia, again in 2012 or 2013, you asked Laura to follow you into your bedroom. You told her to take her clothes off, leaving her bra and pants on. You pushed her onto the bed, kissed her on her face and neck and played with her bra strap and pulled down her underpants. You then digitally penetrated her vagina.
37 During 2013, Laura moved out of the bedroom she shared with her sister Madison, into her own bedroom. She woke one night to find you in her bed, wearing no shirt and holding her body from behind. You digitally penetrated her vagina. You also grabbed various parts of her body, before she told you she was tired and wanted to go to sleep, at which time you put your clothes on and left the room.
38 Charge 9 is a representative charge of two occasions. One night when Laura was in Grade 6 in 2003, you requested oral sex from her. After protesting, Laura eventually said “all right”. You put your penis into her mouth. Laura’s mother was heard approaching the bedroom and you pushed her away, telling her to act normally.
39 Charge 9 also represents a second occasion about a month later when the same thing occurred.
40 Sometime in the latter half of 2013, the complainants’ father asked you not to come to their home, as you were staying there too often. The complainants did not see you after that.
41 On 10 August 2015, Laura told her school nurse you had sexually offended against her and the police were called.
42 On 12 August 2015, the complainants’ mother was told by the school about Laura’s allegations. She later asked Madison if you had ever been inappropriate with her and she replied, you had.
43 On 20 August 2015, Madison gave an account of what you had done and police were notified.
44 Recorded statements were made by the complainants to police on 25 August 2015.
45 Turning to your arrest and interview. On 28 August 2015, you were arrested, taken to Knox Police Station and a record of interview was conducted. During the interview, you admitted staying with the family over several years and agreed you had been close to Laura in particular. You agreed with the context in which several offences were alleged, that is, watching movies on the couch with Laura, visits to your house and going to the creek with Laura on Melbourne Cup Day, however denied all allegations of sexual offending against both complainants.
46 You said at the time that you were staying with the complainants’ family, you were consuming very large quantities of beer.
47 You said when you went to the complainants’ home, you would give Madison and Laura a hug and a kiss on the lips.
48 There are a number of aggravating features of your offending. There are multiple complainants, that is two. Also your offending occurred over a period of time, not a "one-off". Also both complainants were well under 16 years of age and you much older. You also breached the trust, not only of the complainants, but also their parents.
49 You have admitted a prior criminal history, commencing in 1991, with your most recent prior court appearance 19 October 2006. Your previous offending involved dishonesty offences, exceeding the prescribed concentration of alcohol and other driving offences. You have previously been sentenced to pay fines, a community correction order, which I note was breached and an intensive correction order. I note you do not have any offending of a similar nature to that before me.
50 The victims of your offending have suffered considerably and I shall return to pass some remarks upon that subject shortly.
51 Counsel who appeared on your behalf at your plea hearing, Ms Connelly, provided a written outline of submissions and addressed them during the course of it.
52 In her written submissions, by way of your personal history and circumstances, she noted that you were born 7 July 1957 and as I said, are 60 years at time of sentence.
53 There were 11 children in your family, you the second eldest. Your father is deceased and I gather your mother still employed.
54 There had been issues of alcohol use within the family and you described your father as an alcoholic, as were two of your siblings.
55 Perhaps due to the size of the family, it was not terribly close, with the children vying for attention from the parents. You described not being in close contact with members of your family.
56 You were married in 1978 and separated in 1991. There are two children of that marriage and you remained actively involved in their lives post-separation, for the purposes of rearing your children.
57 Ms Connelly submitted that even when you were aimless and homeless, you nevertheless remained involved with your children.
58 You attended Alamein Primary School and Syndal Technical School, finishing Year 11. You were employed after leaving school until about 2011 in a variety of jobs, including working in a supermarket, with Vulcan Heating, Greythorn Timber Doncaster, Silk Craft Manufacturing (eight years), as a builder, at International Harvester, at Coonara Wood Heaters for seven years and Conamatic for nine years, leaving in 2011. Since that time, you had been in receipt of a disability support pension.
59 You were effectively homeless between 1992 and 2013, after you and your wife separated. Over those years, you had also received treatment for cancer. When you were not in hospital receiving treatment, you were living in cars and staying at friends’ places, including with the victims’ family.
60 Until your recent incarceration, you were living in a boarding house which accommodated transient people. You described that as "difficult" and were hospitalised on approximately 19 October 2017, as the result of an assault upon you by a co-resident.
61 You described being a chronic alcoholic from the time of your marriage breakdown and cancer diagnosis/treatment, albeit with periods of abstinence at times of acute ill health. Your use was heavier when you were not coping. You initially advised your counsel you were currently consuming two stubbies a day, although during your plea hearing, you instructed it was more than that. You consumed alcohol, in part, to cope with your living arrangements. Further, when you had a very limited range of activities to do during the day, you also drank.
62 At the time of this offending, I was told you were consuming excessive amounts of alcohol. Reference was made to discharge summaries from a hospital admission on 19 June 2017. Following discharge, you were treated in a rehabilitation unit for alcohol withdrawal syndrome between 24 June and 29 June 2017.
63
You have alcohol-related liver disease that requires medical review and have
a reduced stomach and no spleen, due to surgical removal of them as a result of cancer in 1992 to 1993.
64 Your counsel, Ms Connelly, submitted it was "likely" you would face alcohol withdrawal syndrome upon being remanded in custody on these charges and that you would require urgent care. I discussed that at some length with her and whether such would actually be likely. The prison authorities should at least be aware of that "possibility" and I made that clear at the last hearing.
65 Turning to your criminal history, Ms Connelly referred to your most recent offending, involving social security fraud, by claiming a disability support pension after increasing your work hours. You successfully completed the intensive correction order and were still repaying the debt, I was told, through your pension. There was nothing subsequent or pending and I am aware of that.
66 You have pleaded guilty to these charges and your pleas have facilitated the administration of justice. You are entitled to have the fact of your pleas of guilty taken into account in your favour and I do so. By your pleas of guilty, the victims of your offending have not been required to give evidence upon your trial, although I note there was a contested committal with other members of the family being required to give evidence. I note your plea of guilty was entered at a very late stage.
67
A chronology was provided as part of the prosecution opening. You were interviewed, as I said, 25 August 2015 and charged on 3 November 2016.
A contested committal hearing occurred on 3 April 2017. Your trial was to start on 28 August 2017 and on 29 August 2017, pre-trial argument commenced before his Honour Judge Taft. On 1 September 2017, the matter resolved and you pleaded guilty to this indictment. I note your denials at the time of interview with police and your pleas of guilty were entered late. Nevertheless, you have pleaded guilty to the charges and I also accept that indicates some remorse by you for your offending, although I note with concern, you did not admit your offending, as referred to by Dr Evans in her report of 18 October 2017, to which I shall shortly refer.
68 Ms Connelly relied upon your age and ill health at sentence. You are 60 and incontinent. You require prompt and frequent access to the toilet. You suffer with nausea, diarrhoea and vomiting. You need to eat small meals frequently during the day, as a result of your diminished stomach size. You also take multiple prescribed medications and you instructed you were on a salt-free diet, post-splenectomy.
69 Regarding cognitive impairments, Ms Connelly submitted you had difficulty attending to multiple sources of information, had poor new learning capacity, impaired non-verbal memory and impulsivity.
70
Ms Connelly submitted the sentence I imposed would likely represent at least
a very considerable proportion of your remaining life. She also urged that prison would be more burdensome than for an offender in good health. I agree, as
I discussed with her.
71
Ms Connelly also referred to your lack of previous offending of this kind. She submitted you had good prospects for rehabilitation and that there would unlikely be any similar offending in the future. Regarding those prospects, I am not as confident, in particular, given your recent denial of your offending to
Dr Evans.
72 Ms Connelly also submitted there had been undue delay between the record of interview in August 2015 and being charged in November 2016. I accept this delay was significant.
73 Ms Connelly conceded a term of imprisonment with a non-parole period was the only appropriate disposition and that, in my opinion, was an appropriate concession.
74 A number of medical reports were before me.
75 A report from Dr Anil Asthana, dated 26 October 2017, Melbourne Digestive Centre, regarding your future medical management. The doctor confirmed you had alcohol-related liver disease and that in the event of incarceration, you would require four-weekly medical reviews for a weight and fluid-swelling check, six-monthly ultrasound scan and blood tests relevant to cancer surveillance. Other matters were also recommended.
76
There was a report from Dr Loretta Evans, Clinical Neuropsychologist, dated
10 May 2017. It appeared that report was prepared for an opinion as to whether or not you were fit to stand your trial. Further details were provided in that report regarding your background and history and I will not repeat them here. You described your childhood as “quite good” and denied a history of physical or sexual abuse, or exposure to domestic violence. You described that after your divorce from your first wife you had been homeless, then living an itinerant lifestyle with friends, in parks and living in your car. During your periods of homelessness, you still had contact with your ex-wife and were attending your daughter’s home until 2014.
77 In the past three years you had been living in a boarding house. Your wife apparently continued to assist you by providing frozen meals that you could reheat when required.
78 You described consuming alcohol from age 21, initially on a social basis, however, the quantity and frequency escalated. By 2000, when you were 43 years of age, you estimated you were consuming 16 cans of full-strength VB beer a day and that you maintained that pattern of drinking until approximately four weeks prior to that report being prepared. You were, at the time of that assessment, drinking between two and six cans per day.
79 You had never participated in any formal detoxification program or supervised withdrawal, by way of alcohol rehabilitation programs.
80 Until recently, you had been in relatively good health, although records available to Dr Evans confirmed you had a medical history of partial gastrectomy for stomach cancer in 1992, a splenectomy in 1992 and rib fractures, as a result of an assault. There were also records from the Angliss Hospital, 6 October 2008, regarding attendance for chest pain. You also reported a history of dumping syndrome.
81 On 4 September 2012, medical material indicated at that time, you were potentially experiencing “acute alcoholic hepatitis”.
82 Records showed you attended Angliss Hospital emergency department, 7 April 2016 and were diagnosed with alcoholic hepatitis, with a background of jaundice and malnutrition and treated accordingly, being discharged 14 April 2017.
83 You stated you had never been diagnosed with any mental health disorders or psychiatric illnesses.
84 Turning to Dr Evans’ neuropsychological assessment at that time, you produced a neuropsychological profile, characterised by generally average intelligence, on a background of some cognitive processing deficits. In her opinion, you demonstrated alcohol-related cognitive deficits that impacted on your aspects of cognition.
85
There was a further report from Dr Evans, dated 18 October 2017, sought in preparation for your potential transition into custody. I note you were still, at the time of the recent interview, not admitting your offending, rather you stated,
“I just wish these two girls would tell the truth, come clean, because I didn't do what they are accusing me of." When pressed further you replied, “If I did what they are accusing me of, I wouldn't do it again." Regarding remorse, you said, “If the judge wants me to be remorseful on the 29th, I'm not going to do it. I'm not going to admit it." You then went on to say, “Might just say sorry and that's it. I'm not going to use the word 'apologise', I'll just say I'm sorry for my actions." When questioned if you regretted your actions, you replied, “You might as well say yes, it's not worth it - arguing about it."
86 Regarding remorse, Dr Evans concluded you responded to questions regarding remorse and regret in a manner that was highly guarded and somewhat dismissive. As a consequence, you did not impress as overly remorseful. That concerns me.
87 Regarding your cognitive skills, you had sufficient skills to enable you to problem solve on a day-to-day level. The cognitive deficits you displayed were highly consistent with chronic alcohol consumption and those deficits were considered permanent, although with abstinence, Dr Evans thought that there might be some mild improvement.
88 A number of recommendations were made by Dr Evans to assist your transition into custody and that information was provided to the authorities at your plea hearing. In her opinion, given your significant medical issues at this point in time, it was important to ensure a thorough medical handover was provided to prison medical staff. I discussed this with not only Ms Connelly, but also with the prison officer who was present in court at your plea hearing and written information was, as I have said, provided to the authorities at that hearing, to assist your transition.
89 There was also an report from Dr Cheah, dated 11 July 2012, which confirmed you had stomach cancer and a gastrectomy at Dandenong Hospital in 1992.
90 A report from Dr Meroula Richardson, Cardiovascular Physician, dated 30 October 2008, noting carcinoma and stomach surgery in 1993. You had made a good recovery, although sometimes had dumping syndrome.
91 There was a discharge summary from Eastern Health, 29 June 2017, with the principal diagnosis of alcohol withdrawal syndrome.
92 I accept you will require regular medical review in custody and that you will also, based on the report of Dr Evans, struggle to manage prison routine due to your cognitive deficits.
93 I discussed at some length with your counsel whether or not the principles in R v Verdins & Ors[3] applied. As I understood Ms Connelly’s submission, your cognitive impairment and physical condition could and should be taken into account as part of general sentencing principles, that is, not relying upon Verdins specifically.
[3] (2007) 16 VR 269
94 Mr Batten, for the prosecution, conceded general sentencing principles were the appropriate way to deal with these issues and not by application of Verdins Principles 5 and/or 6.
95 As I discussed during the course of the hearing, consistent with general sentencing principles, I do accept your cognitive impairment and your many physical issues (likely to be a greater problem for you than your cognitive impairment) will make your time in custody more difficult for prisoners without such physical and other issues and such is relevant and in mitigation of your sentence.
96 There were two victim impact statements before me. Both are eloquent and in these brief sentencing remarks, it is difficult to do justice to them. I have, however, read both of them.
97 One from Laura, sworn 29 October 2017. She described that at just 8 years of age, she was thrown into a life that was completely out of her will. She was scared, confused and unsure of what was happening to her. She had trusted you, as did her family. She now had difficulty trusting people. This had meant that she did not meet new people or go out with her friends.
98 Laura had difficulty sleeping and was often on "high alert", fearing you were going to come back into her room late at night. She had flashbacks of your offending.
99 Laura did not feel happy. She felt uncomfortable in clothes that showed too much skin and did not wear dresses or skirts. She had difficulty holding down a job, as she found it difficult talking to customers. She described having lost a lot of her childhood because of what you did to her and that she would never get it back.
100 There was also a victim impact statement from Madison, sworn 21 October 2017. She described that when she was at school during the day, she would dread coming home at night, with the thought of you being at her home. When she was at home with you, she felt extremely anxious, unsafe and scared. She had to pretend in front of her family and friends that she was okay with you being there. She could never bring herself to tell anyone what was going on. She was embarrassed and made to think it was her fault. She had difficulty sleeping for years after your offending. She tried as best she could to block out your offending. When she got to about 16 or 17, even the smallest things would trigger her, words like “sexual assault”, “rape” and jokes that boys at school would make. When those memories were triggered, it would ruin the rest of her day and she would sit in silence in class, not able to concentrate on her school work. She struggled with Year 12 schooling and also her emotional stability.
101
The courts have also recognised the importance of social rehabilitation.
A number of authorities have referred to the effects upon a victim of sexual offending, including DPP v Toomey[4], in which his Honour Vincent JA referred to social rehabilitation, citing DPP v DJK[5] (allowing of course for the differences in factual circumstances to the present case):
[4] [2006] VSCA 60
[5] [2003] VSCA 109
“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 are 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.”
102 The effects upon a victim are a relevant sentencing consideration (see s.5 Sentencing Act 1991). I am conscious, however, I must not allow the effects upon a victim to swamp the sentencing process.
103
You are, by virtue of your plea of guilty to Charge 1 (a course of conduct charge) and a term of imprisonment being imposed upon it, then fall to be sentenced as a serious sexual offender on Charges 2 to 9 inclusive on the indictment. In that regard, Mr Batten referred me to s.5(2F) Sentencing Act 1991. When sentencing on Charge 1, I must impose a sentence that reflects the totality of the offending that constitutes the course of conduct and must not impose
a sentence that exceeds the maximum penalty prescribed for the offence, if charged as a single offence.
104
Relevant to Charges 2 to 9 (serious sexual offender provisions), s.6B and s.6E Sentencing Act 1991 apply. When sentencing on these charges, in determining the length of sentence, I must regard the protection of the community from you as the principal purpose for which the sentence is imposed and may impose
a sentence longer than that which is proportionate to the gravity of the offence, in light of its objective circumstances.
105 The prosecution was not seeking a disproportionate sentence and I am also of the opinion, I am able to appropriately sentence you without the need to impose a disproportionate sentence.
106 A number of cases have referred to ss.6D and 6E Sentencing Act 1991. See RHMcL v R[6], DPP v Dalgleish[7], DPP v Granata[8], DPP v Hopson[9], Matheas v The Queen[10].
[6] (2000) 174 ALR 1 [76]
[7] [2016] VSCA 148
[8] [2016] VSCA 190 [124]-[128]
[9] [2016] VSCA 303 [46]-[51]
[10] [2017] VSCA 330 [46]-[50]
107 In Matheas, Court of Appeal Tate JA stated:
“A need to ensure that the totality principle is not applied in a manner inconsistent with the legislative purpose of s.6E, that is, full effect is not to be given to the totality principle as though s.6E ‘was not on the statute book’. The weight to be given to the totality principle is to be moderated to ensure consistency with legislative purposes.” [50]
108 In Dalgleish, the court referred to RHMcL, in which the court in RHMcL cautioned judges not to compress sentences where the accused person was a ‘serious sexual offender’ within the meaning of s16(3A) of the then Sentencing Act (now of course, s6).
109 In Dalgleish, the court noted in RHMcL, the High Court observed the scope for applying the totality principle must be more limited than in cases not falling within that section (Dalgleish [59]).
110 The court in Dalgleish, referred to Gordon v R[11], where Court of Appeal Redlich JA further observed:
“A sentencing judge must evaluate the overall criminality involved in all of the offences for which the offender is to undergo sentence, ensuring that there is no disproportion between the totality of the criminality and the totality of the effective length of sentences imposed. The judge is also required to ensure the totality principle is applied in a manner which will not undermine the legislative policy inherent in s.6E of the Sentencing Act 1991. This tension between the policy underlying s.6E and the principle of totality, is difficult to reconcile. Authority has thus far provided no clear guidance as to the circumstances in which the statutory presumption of full cumulation under s.6E should override the principle of totality.”
[11] [2013] VSCA 343
111 Ms Connelly agreed you fell to be sentenced as a serious sexual offender on Charges 2 to 9 inclusive, if a term of imprisonment was imposed on Charge 1.
112 On Charge 9, a representative charge (of two occasions), as such the decision of R v SBL[12] applies. See also R v Brown[13], amongst others.
[12] [2009] QCA 130
[13] (2002) 5 VR 463
113 Regarding course of conduct charges, Poursanidis v The Queen[14], McGray v The Queen[15] and Harmon v The Queen[16] also provide some assistance.
[14] [2016] VSCA 164 [11]-[12]
[15] [2017] VSCA 340 [29]-[30]
[16] [2017] VSCA 169
114 There is no doubt courts regard offending against children as very serious indeed and have done so for many years. See R v Wayland[17], R v Sposito[18], DPP v VH[19], DPP v G[20], recently Dalgleish and also current sentencing practices relevant (Dalgleish). I am, of course, mindful of the different types of offending in those cases from yours.
[17] 14/9/1992 CCA Vic
[18] Court of Appeal Vic, 8/6/93
[19] (2004) 10 VR 234
[20] [2002] VSCA 6
115
Your counsel has relied heavily upon your age and your health and of course,
I am aware of the contents of the various reports placed before me. The courts in the past have also referred to age and ill-health in the sentencing process.
116 The decision of R v RLP[21], is referrable to age and ill-health of an offender. See in particular paragraphs 32 to 38 therein.
[21] [2009] VSCA 271
117 I also note the decision of TRG v The Queen[22], in which Weinberg JA referred to RLP and the passage from that judgment of Neave and Redlich JJA and also Hollingworth AJA:
[22] [2011] VSCA 337
“We approach the conjunction of the appellant’s advanced years and
ill-health with these propositions in mind.
(i)The age and health of an offender are relevant to the exercise of the sentencing discretion.
(ii)Old age or ill-health are not determinative of the quantum of sentence.
(iii)Depending upon the circumstances, it may be appropriate to impose a minimum term which will have the effect that the offender may well spend the whole of his remaining life in custody.
(iv)It is a weighty consideration that the offender is likely to spend the whole, or a very substantial portion of the remainder of their life in custody.
(v)Other sentencing considerations may be required to surrender some ground to the need to exercise compassion to take into account of the real prospect an offender may not live to be released and that the offender’s ill-health will make his or her period of incarceration particularly onerous.
(vi)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.
(vii)Old age and ill-health do not justify the imposition of an unacceptably inappropriate sentence.” [39]
118 Ms Connelly urged that specific deterrence not be given much weight in your case, relying upon your age and health.
119 Ms Connelly also submitted, relying upon paragraph 11 of her written outline of submissions, the risk of your further sexually offending was reduced, due to your ill-health.
120 Regarding the need to protect members of the community from you, she conceded, whilst there had not been any formal assessment of your future risk, you would be older and “less well” physically, upon release and that would provide some protection to the community.
121
Regarding the delay between your record of interview and being charged,
Ms Connelly submitted that was significant and that some of the adjournments had been sought due to your ill-health. She submitted you had not re-offended since your record of interview. I am aware of those matters.
122 Mr Batten referred to the delay between the record of interview and you being charged with these offences was, in essence, to enable advice from the Office of Public Prosecutions regarding the specific charges to lay. Secondly, the informant was absent from work for a significant period at that time. I accept these reasons, nevertheless there was a significant delay.
123 Regarding your plea of guilty, Mr Batten submitted it was late, entered at the door of the court during pre-trial argument at the committal stage, albeit no questioning of the complainants, as that would not have been permitted, family members were questioned and the matter was, at that time, proceeding as a trial and in fact, commenced trial in this court.
124 Mr Batten submitted the only appropriate sentence was a term of imprisonment with a non-parole period. There was a need for just punishment, general deterrence and denunciation of your offending.
125 He submitted also the need for specific deterrence when sentencing you and the need to protect members of the community. That at this moment, your risk of re-offending was unknown. I agree. He conceded you had not been charged with any other like offending and that was in your favour. That is also correct.
126
Regarding the submission you would be a reduced likelihood of sexually
re-offending, due to your state of health, he submitted I should not give any weight to that, it was purely speculative, although he did concede there was evidence of your ill-health, alcoholism and low cognitive functioning and there is. Mr Batten, however, referred to you attending Dr Evans in May 2017 and being able to maintain concentration during that assessment over a period of approximately three hours, without obvious discomfort.
127 Whilst you had significant health issues, to suggest you would be incapacitated upon release (ie: unable to sexually re-offend), he urged that was speculative and not consistent with the evidence. I have some concerns regarding your risk of re-offending, in part due to your limited remorse.
128 Mr Batten submitted that notwithstanding your plea of guilty to these charges, you denied the commission of them, as recently as October 2017, when you told Dr Evans you did not do it and the complainants should “tell the truth”. That, as I have said, concerns me.
129 Mr Batten submitted, while you should receive credit for your plea of guilty and its utilitarian value, you appeared not to have developed insight into your offending. I agree.
130 Mr Batten submitted there remained a need to protect the community from you in the future.
131 He submitted regarding the Sex Offenders Register, mandatory registration was appropriate and for life. Ms Connelly also agreed such classification and duration applied to you.
132
Regarding your rehabilitation prospects, I have guarded optimism, although
I do note your previous court appearances do not involve offending of this type. I also note your age at which you are entering the prison system and by the time you are released from custody, you will be older. I am concerned, however, regarding your recent statement to Dr Evans. I am, however, required when sentencing you, to maximise your chances of rehabilitation as they may be.
133 I am well aware this is your first time in custody.
134
As well as matters personal to you, to which I have referred, including your prospects of rehabilitation, as I find them to be, I must also take into account matters such as general deterrence, which is of considerable importance in
a case such as this, involving sexual offending of children.
135 There is also the need for specific deterrence when sentencing you, as you do have a prior criminal record, although I note not for this type of offending. Also your offending was not a "one-off" incident, rather occurred over a significant period of time and involved two complainants.
136 I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending. This causes me concern and I note that none of the reports before me address your risk of future sexual offending. Relevant also to this is your insight and remorse for your offending, both of which concern me.
137 I am called upon by the Sentencing Act 1991 to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
138
I direct that it be entered into the records of the court, you have been sentenced on Charges 2 to 9 inclusive as a serious sexual offender and the sentence will therefore be crafted and drafted in that way and that will become apparent as
I proceed.
139 I sentence you as follows.
140 On Charge 1, you are convicted and sentenced to 3 years' and 6 months’ imprisonment.
141 On Charge 2, you are convicted and sentenced to 18 months’ imprisonment.
142 On Charge 3, you are convicted and sentenced to 8 months’ imprisonment.
143 On Charge 4, you are convicted and sentenced to 2 years’ imprisonment.
144 On Charge 5, you are convicted and sentenced to 8 months’ imprisonment.
145 On Charge 6, you are convicted and sentenced to 3 years’ imprisonment.
146 On Charge 7, you are convicted and sentenced to 3 years’ imprisonment.
147 On Charge 8, you are convicted and sentenced to 3 years’ imprisonment.
148 On Charge 9, you are convicted and sentenced to 4 years’ imprisonment.
149 I am now going to turn to orders in relation to cumulation and concurrency.
150 Charge 9 is the base sentence.
151 I direct that 16 months of Charge 1 be served cumulatively upon Charge 9.
152 I direct that 12 months of Charge 2 be served concurrently and 6 months cumulatively upon Charge 9.
153 I direct that 6 months of Charge 3 be served concurrently and 2 months cumulative upon Charge 9.
154 I direct that 14 months of Charge 4 be served concurrently and 10 months cumulatively upon Charge 9.
155 I direct that 6 months of Charge 5 be served concurrently and 2 months cumulatively upon Charge 9.
156 I direct that 2 years of Charge 6 be served concurrently and 12 months cumulatively upon Charge 9.
157 I direct that 2 years of Charge 7 be served concurrently and 12 months cumulatively upon Charge 9.
158 I direct that 2 years of Charge 8 be served concurrently and 12 months cumulatively upon Charge 9.
159 For clarity, the orders for cumulation are upon each other and upon the base sentence.
160 That results in a total effective sentence of 10 years’ imprisonment and I direct that you serve a period of 6 years before you are eligible for parole.
161 Pursuant to s.6AAA Sentencing Act 1991, had you been found guilty of these charges following jury verdict, in other words, if you had pleaded not guilty to these nine charges and been found guilty of them, I would have sentenced you to a term of imprisonment of 15 years, with non-parole period of 12 years.
162 Pursuant to s.18(4) Sentencing Act 1991, I declare you have spent 12 days in custody by way of pre-sentence detention and I direct that that be entered into the records of the court. That should be up to and including yesterday, 11 December 2017.
163 By virtue of your finding of guilty in relation to the charges being four Class 1 offences and five Class 2 offences, you are also required to report, pursuant to the Sex Offenders Registration Act 2004, for life. Such being mandatory and as I have said, Ms Connolly agreed such applied to you.
164 The prosecution also made application for a forensic sample. That was not consented to you by counsel on your behalf. I do, however, make the order in the terms sought. It will be a for a saliva sample and I do that on the basis of the seriousness of your offending and your prior convictions. I must advise you, the authorities may use reasonable force in order for them to obtain that sample.
165 Following this sentence, my associate is going to approach you and ask you to sign some documents about the Sex Offenders Registration Act. You are not being asked whether or not you want to be on the register, I have already made that order. You are simply being asked to acknowledge receipt of the paperwork. If you do not want to sign it, so be it, but she has to ask as part of her job and I have already decided you will be on the register.
166 Now, I do not think there are any other orders. How about the maths? You might not agree with the maths, I am just asking, did it all work out? Have you got the maths?
167 MS JANKOVIC: It looks like it's worked out.
168 MS CONNELLY: I agree. Yes. Sorry, Your Honour.
169 HER HONOUR: Let's talk PSD. Are we in heated agreement?
170 MS JANKOVIC: Yes.
171 HER HONOUR: Up until yesterday and including yesterday?
172 MS JANKOVIC: Yes, Your Honour, 12 days.
173 HER HONOUR: Now, I have to sign the - I will sign this order here. And the Sex Offender Register documents. I am signing those. Can you go back - he has to sign - well he is being asked to sign that receipt. If he does not want to assist - - -
174 MS CONNELLY: May I approach?
175 HER HONOUR: Yes, yes, yes. It is his choice, but if he does not want to, he does not want to, but she has got a job to do, all right? All right, how are we going down there? Everyone all right?
176 MS CONNELLY: It is just a physical exercise, Your Honour.
177 HER HONOUR: No, no, that is all right. Can I just remind the prison authorities, Mr Polivos has medical issues. Material was provided last time. I simply repeat that concern as well.
178 PRISON OFFICER: That will be attended to, Your Honour.
179 HER HONOUR: For those who are looking after his welfare. All right, is everyone right?
180 MS JANKOVIC: Yes, Your Honour.
181 HER HONOUR: You right?
182 MS CONNELLY: Yes.
183 HER HONOUR: All right. Thank you.
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