Director of Public Prosecutions v Prodanovich
[2019] VCC 1730
•24 October 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-00991
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SIMON PRODANOVICH |
---
JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 October 2019 | |
DATE OF SENTENCE: | 24 October 2019 | |
CASE MAY BE CITED AS: | DPP v Prodanovich | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1730 | |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW
Catchwords:
Legislation Cited: Crimes Act 1958; Sex Offenders Registration Act 2004; Sentencing Act 1991
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J. Malobabic | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr I. Crisp | Thexton Lawyers |
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 Simon Prodanovich, you have pleaded guilty to one charge of rape. The maximum penalty applicable to that offence is 25 years’ imprisonment. Rape is a category one offence under s.3(1) of the Sentencing Act 1991 ('the Act'). Under s.5(2G) of the Act, the court must make a mandatory order for imprisonment for category one offences committed by an adult. The court cannot order a combined sentence order of imprisonment and a Community Correction Order.
2 The standard sentence for rape is 10 years. That means s.5A, 5B and 11A of the Sentencing Act 1991 have application as well as s.5 and all other relevant and applicable sentencing principles.
3 In sentencing you for the standard sentence offence of rape, I must take the standard sentence of 10 years' imprisonment into account as one of many factors relevant to sentencing you and I shall return to this later in these sentencing remarks.
4 This crime arises out of events which took place on 12 January 2019, involving the victim of your offending, Diane Montgomery.[1]
[1]A pseudonym.
5 It is not necessary for me to recount in great detail the facts of this matter, as the matter was opened in some detail by the learned prosecutor, consistent with the agreed prosecution opening (Exhibit A). I proceed to sentence you on the basis of the facts as so summarised by the prosecutor and discussed during the course of the plea hearing. It is sufficient for present purposes to simply say the facts in this case are most serious and disturbing.
6 I turn to the summary of your offending. At the time of it you were 58, and are 59 at sentence. You were then employed by Omni-Care as a Personal Care Assistant. Omni-Care provided community support services.
7 You had been employed with Omni-Care since approximately August 2018. Prior to that you had been employed as a Personal Care Assistant with other support services, including the Brotherhood of St Laurence and the Australian-Croatian Community Services (since 2017).
8 On 14 December 2018, you signed the Omni-Care Code of Conduct, acknowledging, amongst other things as an employee, you must not engage in sexual abuse or misconduct.
9 The victim of your offending, Diane Montgomery, was born in 1936 and is now 83 years of age, and was 82 at the time of your offending. Mrs Montgomery suffered poor health. She lived with her husband, Alfred Montgomery,[2] in Mount Waverly, the two had been married since 1957, living in their home since 1962.
[2]A pseudonym.
10 Alfred Montgomery is 86 years of age, with numerous health conditions, requiring the assistance of Personal Care Assistants to shower and change him. He was unable to walk and required a wheelchair to get around.
11 For approximately two years, both Mrs Montgomery and Mr Montgomery had been registered with Omni-Care. Carers would call every day and use the unlocked front door to enter the house. Mrs Montgomery & Mr Montgomery usually had female carers.
12 On Saturday, 12 January 2019, you were rostered to attend their home to provide personal care support to Mr Montgomery.
13 At approximately 11.00 am you knocked on the front door. There was no answer. You discovered the front door unlocked and entered the home.
14 You called out to both Mrs Montgomery and Mr Montgomery. Mrs Montgomery called back and said they were both in the bedroom.
15 You went to the bedroom and found Mrs Montgomery and Mr Montgomery in bed.
16 After greeting both Mrs Montgomery and Mr Montgomery, you got a container of water, cleaning sponges and a bin, and returned to Mr Montgomery, where you washed and changed him.
17 Mrs Montgomery remained in bed with her husband, as sometimes Mr Montgomery could become confused and she was able to settle him down.
18 At that time, Mrs Montgomery was taking medication for her legs. You said to her that a massage would help her better than taking tablets. You completed the dressing for Mr Montgomery, put him in his wheelchair, wheeled him into the lounge room and placed him on a chair.
19 You returned to the bedroom and asked Mrs Montgomery to sign your form. You left the bedroom then returned a short time later.
20 You walked to Mrs Montgomery’s side of the bed, stood and massaged her legs. Mrs Montgomery was lying on her back, wearing a night dress and not wearing any underpants. You pulled the bedcovers and began massaging Mrs Montgomery’s left leg.
21 Your hands proceeded higher and higher up her left leg. She did not say anything to you as she was in shock.
22 You then licked one of her fingers and inserted it into to Mrs Montgomery’s vagina, saying words to the effect “ladies like that”. Mrs Montgomery said “stop that’s enough of it”. You took your finger out of her vagina and left the home in a hurry.
23 Mrs Montgomery called an affiliated agency Uniting to report the incident. When contacted by Omni-Care you denied your offending. Police were notified.
24 On 12 January 2019, Mrs Montgomery went to the Maroondah Hospital with her daughter and was examined by Dr Bates. Mrs Montgomery had a scratch abrasion to the right lateral wall of her vagina about 1 to 2 centimetres long, and a scratch abrasion of the left lateral wall of the vagina about 4 centimetres long.
25 You attended Box Hill Police Station for interview on 14 January 2019 and read from your already prepared statement. You denied any physical contact with Mrs Montgomery, stating she was not your client that day.
26 You further said in your pre-prepared statement:
'That is totally false, fabricated. I was in bed last night thinking why this person had made an allegation. The only thing I could think of is when she asked me to apply the lotion after Mr Montgomery that I refused because of the tone in her voice she was angry. The only thing I can think of, retribution, anger that I did not assist her while I was there.'
27 You said you were gobsmacked as to why a woman of that age would slander you. You said you had gloves on and only took them off when you had finished your duties.
28 You were charged on summons.
29 On 22 May 2019, a report from VPFSD regarding a DNA analysis of swabs taken from Mrs Montgomery revealed you were not excluded as a contributor.
30 The matter resolved at a committal mention on 24 May 2019 to, as I understood it, the agreed prosecution opening. I accept, therefore, this matter has progressed through the court fairly quickly, your plea being entered in May. There was a chronology prepared by the prosecution, and within the prosecution opening, which indicates the DNA Statement was released to the parties on 22 May 2019, the matter resolving with you pleading guilty two days later.
31 You have pleaded guilty to this charge and you are entitled to have that fact taken into account in your favour, and I do so. The community, by your plea of guilty, has been spared the time and cost of a trial and witnesses, in particular, Mrs Montgomery have been spared the need to give evidence upon your trial.
32 I take into account, in your favour, you intimated your intention to plead guilty to these charges and after receipt of the DNA report.
33 I do note, however as I discussed with your counsel, Mr Crisp, that at the time you were interviewed by police in January 2019 you denied your offending consistent with your prepared statement dated January 2019.
34 The fact that you have entered a plea of guilty to this charge, and the timing of it, are relevant in mitigation of your sentence.
35 Mr Crisp submitted the case settled at an early age and I accept that as I have said on 24 May 2019, you entered a plea of guilty to this charge. I also accept that between the date of your record of interview and production of your prepared statement you had numerous discussions with either your counsel or solicitor regarding the future of this charge and possible resolution.
36
There are a number of aggravating features of your offending, conceded by
Mr Crisp as applicable. That you were the carer of Mrs Montgomery (and also Mr Montgomery). That your offending involved a breach of trust of Mrs Montgomery and Mr Montgomery as they allowed you entry to their home. That Mrs Montgomery was vulnerable given her ill health.
37 I also consider there was some pre-planning albeit not of great duration. As per the agreed summary you offered a massage, wheeled Mr Montgomery into the lounge, returned to Mrs Montgomery, massaged her leg, put your finger in your mouth, then into Mrs Montgomery’s vagina and said words to the effect “ladies like that”. Also some injuries were sustained as a result of your offending as referred to within the agreed prosecution opening.
38 Your offending behaviour was nothing short of appalling, reprehensible and repulsive. Mr Healey in his report also described your offending as despicable. It certainly was.
39 The victim of your offending, Diane Montgomery, and her family have suffered significantly as a result of your offending, and I shall return to pass some comments on that later. As discussed with Mr Crisp I must and do, disregard any inadmissible material contained within them.
40
You have admitted a prior court appearance at the Dandenong
Magistrates’ Court on 23 March 1999. On a charge of theft from a shop you were without conviction fined $80. I disregard that unrelated and dated prior appearance for the purposes of sentencing you on the charge that is before me.
41 Mr Crisp relied upon written submissions and addressed them during your plea hearing. He submitted your plea of guilty was entered at the committal mention stage, 24 May 2019, and I accept, as I have said, that as I have stated earlier in these sentencing remarks, it has utilitarian value.
42 I accept your plea of guilty is indicative of some remorse, however I am concerned regarding the extent of your remorse given your lack of explanation for this offending. I accept you have expressed remorse to Mr Healey for it.
43 Mr Crisp referred to your background and history in his written submissions. You have had a consistent work history since leaving school at age 18. That work included General Motors Holden as an assembler, then with the Public Transport Corporation between 1989 and 2001, working in call centres/sales/telemarketing and debt collection until 2016.
44 You enrolled in an Aged Care course with Intercare Training in 2017 and completed a Certificate IV in Aged Support/CPA First Aid Training.
45 You worked with the Brotherhood of St Laurence from 2017 to August 2018, and thereafter were employed with Omni-Care from August 2018 until January 2019.
46 Not surprisingly, I was told that you are currently suspended from duties with Omni-Care. I was told there had not been any further complaints about you in that role.
47 At 22 you married and were with your wife for five years. There was a daughter of that marriage, I now believe she is 32 years of age as I understand it.
48 After your marriage to your wife ceased, you described other relationships and subsequently re-marrying, that lasting for approximately four and a half years. You had been without a partner for the past eight years.
49 Your parents divorced when you were 22. Your father was physically and mentally abusive and violent to you and your mother. When you were 14 you father beat you so severely you were hospitalised for ten days. As a result, you ceased a meaningful relationship with him leaving home at age 18.
50 Between the ages of 14 and 18 your mental health, you said, was adversely affected and your schoolwork suffered due to your home life.
51 You do not have any antisocial tendencies, nor a history of illegal drugs and alcohol, or gambling.
52 Your explanation for this offending was that it was unplanned and opportunistic. You were unable to explain why you committed the offence other than “brain failure”. I discussed that with Mr Crisp. No further definition/explanation was forthcoming. Given your offending behaviour as described in Exhibit A, I have difficulty understanding what you really meant by that.
53
Mr Crisp tendered a report from Bernard Healey, clinical psychologist, dated
28 August 2019. You reported you had never been prescribed medication for depression or anxiety, but did have medication for sleep apnoea.
54 You said you felt shame regarding your behaviour and the impact of it, firstly to Mrs Montgomery and her husband, but also Mrs Montgomery’s family and friends. You acknowledged the disgrace you had brought upon your profession.
55 You said this was the second occasion you had been to the home of Mrs Montgomery and Mr Montgomery.
56 You were born in Yugoslavia, an only child. Your father migrated to Melbourne in 1969 and obtained work as a fitter and turner in Clayton. Your father held that job over many years until he sustained an eye injury. It was around that time that your parents separated when you were 22 years of age.
57 Your father passed away in 2002. I am told your mother is 77 years of age and has lived in Croatia the past two years. She remarried when you were approximately 28/29 and you visited her in Croatia last year.
58 You lived at home until to the age of 18, leaving as a result of your father’s abusive, aggressive and controlling behaviour. You did not visit him thereafter, as you feared that would lead to further conflict.
59 You described your health as a child and into your adolescent years as having been adversely affected by the trauma you experienced at home, and not having anyone to talk to about it.
60 As a result of your father’s assaultive behaviour, you said you lost friends and became isolated as a result of not being able to invite them home.
61 When 14 or 15, after you engaged in an act of dishonesty, you described being severely belted, neighbours calling police and you being taken to Dandenong Hospital, where you stayed for ten days, to which I previously referred. You did not, you said, have a stable male role-model figure.
62 You have never been involved in abuse of alcohol or illicit drugs.
63 Turning to your education, you attended Noble Park High School for Year 11.
64 Further details of your work history, were referred to in the report of Mr Healey (see p.4).
65 Despite the break-up with your wife, you had access to your daughter over the years and had been in contact with her as an adult. She apparently lives in a suburb of Melbourne with her husband and infant daughter.
66 Some details were provided of your apparent most recent relationship which no longer continues (see p.5 of the report).
67 Testing was conducted by Mr Healey. It indicated you had a full-scale IQ of 86. He concluded your test results were not indicative of any major psychological or emotional disturbance. Using the Sexual Violence Risk 20 Inventory, you were a low risk of further offending, and using the Static-99 Assessment Tool, a low to medium risk. He concluded relevant to this offending:
'There was nothing clearly obvious in your personality functioning which would underpin such markedly out-of-character, but serious and despicable, behaviour'.
68 Turning to your rehabilitation prospects, Mr Crisp in essence submitted they were good and I discussed your rehabilitation prospects with him. I accept, as I said, that you have had good employment history over the years and that there is no other offending apart from an earlier charge, which as I have said, I regard as irrelevant for the purposes of sentencing you. I also note ‘appropriate’ relationships with women previously in your life.
69 I do, however, have an unsatisfactory explanation for your offending despite your otherwise history which concerns me. There is a lack of explanation for this very serious offending.
70 I have at best guarded optimism regarding your rehabilitation prospects. I am not by any means suggesting you do not have prospects of rehabilitation. They are, rather, ‘guarded’ given the concerning nature of this offending by someone who in the past has had a good work history and appropriate relationships.
71 When sentencing you, of course, I must seek to maximise your chances of rehabilitation as they may be.
72 Mr Crisp was not relying on the principles of R v Verdins & Ors[3] - all citations will be provided, counsel - based on the report of Mr Healey and that was an appropriate concession on the material before me.
[3](2007) 16 VR 269.
73 It is always a difficult exercise to grapple with terms such as lower end, mid, mid-high when describing offending. The vagueness of the terminology and the limitation of language hinders the utility of the discussion. In Coronado v The Queen[4] - as I say, all citations will be provided - Court of Appeal Bongiorno J observed:
'the offence of rape comprises a wide range of criminal culpability and "a sentence which is clearly appropriate in one case of rape will be manifestly excessive in a different case and even manifestly inadequate in another".' [see paragraph 20]
[4][2016] VSCA 86.
74 Your offending and its place in the range is best described by these sentencing reasons and the sentence I impose, which after mitigation reflects the objective seriousness of your offending. I have had regard to general deterrence, denunciation and protection of the community, your rehabilitation, your remorse and the plea of guilty and other matters referred to in these sentencing remarks. I have had regard to the maximum penalty and standard sentence for rape. Your offending is, as I have said, very serious.
75 I have also had regard to authorities relevant to digital penetration (Shresthav The Queen[5] and DPP v Elfata[6]).
[5][2017] VSCA 364.
[6][2019] VSCA 63.
76 A number of victim impact statements were before me. They are eloquent and it is difficult to do justice to them in these brief sentencing remarks. Each were read into the transcript and I have also read them.
77 There was a victim impact statement from Diane Montgomery. Mrs Montgomery described that your offending caused her anger, fear and a loss of trust in males. She felt so angry and confused about why you would do something like this to a woman her age. She felt fooled and betrayed by you.
78 After the rape, she said it was difficult for her. She believed the stress related to your offending had impacted on her physical health to this day.
79 She was fearful and mistrusted men. She felt frightened around unknown men and did not trust them. She felt frightened getting into a taxi with a male driver, which had never been a problem for her prior to your rape of her.
80 She was recently in hospital and was in fear when placed in a ward with three other men. She felt too anxious to talk to them or be friendly out of fear she would be raped again and she had to be moved from the room.
81 She also felt frightened when a male nurse checked her medical wires and lifted up her nightdress. Those fears were not present prior to the rape.
82 She was also worried about her personal safety at home, no longer allowing or coping with male carers visiting her. She was vigilant about her property and the people on it.
83 When remembering what happened she sometimes cries. She was disappointed as she relied so much on Omni-Care to care for her husband. Mr Montgomery had been trying to help her through it, be close to her and to give her comfort.
84 There was a victim impact statement from Tracy Montgomery,[7] daughter of Diane Montgomery who wrote of the impact your offending had upon her mother, father and family.
[7]A pseudonym.
85 Her mother, she said, is now 83 years of age with significant health issues living in constant pain. That she was very independent, rarely complained, and was determined to make the best of any situation. She described her father's ailments in some detail. It was only after some time Tracy Montgomery was able to convince her mother to accept help from outside agencies for Mr Montgomery’s care. It took the family many years and a few hospitalisations for both Mrs Montgomery & Mr Montgomery to accept that they just could not fully look after themselves.
86 The help they obtained in their home progressed from cleaners to assistance with her father’s showering, now with carers coming in to get her father up in the morning and put him to bed at night. Her mother developed friendships and trust with several of the ladies that regularly came to the house. It was difficult for her mother to allow others to come into the house. The house was often unlocked to allow carers to come in and on occasions, unknown carers came to the house.
87 She said her mother and father trusted those carers to perform their duties in a safe and reliable manner. For her mother, it was a leap of faith for her to trust carers, nurses and doctors visiting her house.
88 Your offending had an ongoing impact upon her mother’s life. She no longer felt safe. She was stressed, anxious and bewildered, which had led to a deterioration in her overall health.
89 She described when her mother was placed into a room at Monash Hospital with three men, that she felt trapped and scared, was terrified and crying. They had to move her into a room with women.
90 Her mother was so affected by the experience at the hospital, she could not bear to stay there and convinced the hospital that she was okay to go home, when she was not.
91 They could not trust carers to look after their father and had to put him into respite care.
92 Her mother often had memories of the rape, triggered by the attendance of nurses, in particular male nurses. Recently, while in hospital, she was extremely anxious about who came into her room and she was too scared to deal with unknown carers.
93 The family no longer knew who were trustworthy carers and who were not. Her older sister had moved into the house and now lived with them full-time, giving them some confidence someone was overseeing them on a daily basis.
94 Her mother would feel more secure if there were cameras and remote locks, although they were expensive. The family were concerned also about whether or not their mother could go to a nursing home. Could they trust the staff there to keep their mother safe?
95 Her father’s anxiety had worsened as he felt he had been unable to protect his wife in their home.
96 She said her mother had limited her outside activities so that she did not have to take a taxi, preferring only to have lady taxi drivers, which was difficult to organise.
97 The impact of your offending meant the family no longer trusted anyone and were very careful about who they let into the house and into their lives. The lives of their mother and father had been shattered.
98 There was a Victim Impact Statement from Paula Montgomery,[8] another daughter of Diane Montgomery and Alfred Montgomery. She described her parents as being highly sociable, warm and friendly people who had become increasingly socially isolated. Her mother was normally very resilient. The impact of your offending on her was incomprehensible. Her mother would never be able to say it was over. The effects of your offending would endure long after this hearing was over.
[8]A pseudonym.
99 The family’s trust in the goodness of people had been shattered, and that had far-ranging effects. Her mother was petrified of men, and her fear was so profound she believed it would always be with her. The presence of men triggered awful memories of your crime. She associated men with her experience of this abuse.
100 Her mother could not be left alone with a man she did not know, even a doctor, and was fearful of even the simplest interaction with men.
101 There had been a huge impact on Mrs Montgomery’s daily life which involved a number of carers. Mrs Montgomery had chronic ill health. Her mother would rather put her life at risk than enter unknown situations where men might be. She avoided going to hospital and wanted to come home early when in hospital.
102 On an occasion when her mother was placed into a room with other men, it was heartbreaking. The family knew they could not be with her all of the time, and there had been instances of male nurses being assigned to her.
103 Her mother was terrified of taxi drivers. She stayed at home much more and her social connections had suffered as a result.
104 Her mother says home does not feel the same to her anymore because it was where the abuse of her occurred.
105 She was confused because you were someone she implicitly trusted, chatted to and allowed to enter her home without question. She was extremely angry you abused her. Her husband wanted to protect her but could not.
106 Your offending had profoundly changed her mother’s experience of the world.
107 Your crime had brutalised her. Mrs Montgomery now gave up easily and was more fatalistic when it came to her health. She no longer trusted her judgement of people.
108 Relevant also is the notion of social rehabilitation.
109 A number of authorities have referred to the effects upon a victim of sexual offending, including DPP v Toomey[9], in which his Honour Vincent J referred to social rehabilitation citing DPP v DJK[10] (allowing of course as I do for the factual differences in your case to theirs.)
[9] [2006] VSCA 90.
[10] [2003] VSCA 109 [17]-[18].
110 But the effects upon a victim are a relevant sentencing consideration – see s.5 of the Sentencing Act 1991. I am conscious, however, that I must not allow the effects upon a victim to swamp the sentencing process.
111 Mr Crisp submitted, taking into account all relevant sentencing considerations, to impose a term of imprisonment which would allow you a significant period of time on parole would appropriately address all sentencing considerations for this offending.
112 Also relevant when sentencing you is the standard sentencing scheme, s.5A Sentencing Act 1991 and the standard sentence is 10 years' imprisonment.
113 Pursuant to s.5A(1) Sentencing Act 1991:
'If the Act that creates an offence, or prescribes the maximum penalty for an offence, specifies a period as the standard sentence for the offence, then—
(a) the offence is a standard sentence offence; and
(b) the period specified as the standard sentence for the offence is the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness'.
114 According to the explanatory memorandum to the Amendment Act, the standard sentence for an offence should be viewed as a 'legislative guidepost' as to the middle range of objective seriousness of that offence. As the explanatory memorandum to the Amendment Act states:
'The standard sentence is not the starting point for sentencing, nor does it require two stage sentencing. Rather, the standard sentence is intended to provide the Courts with a legislative guidepost of objective offence seriousness but is compatible with the instinctive synthesis approach to sentencing which has been affirmed as part of the common law in Victoria.'
115 Section 5A(1)(b) and s.5A(3) of the Act gives meaningful content to this legislative guidepost.
116 As stated in s.5A(1)(b) the standard sentence is the sentence for an offence in the 'middle of the range of seriousness', taking into account 'only the objective factors affecting the relative seriousness' of that offence. Section 5A(3) of the Act provides further:
'For the purposes of subsection (1)(b), objective factors affecting the relative seriousness of an offence are to be determined – (a) without reference to matters personal to a particular offender or class of offenders; and (b) wholly by reference to the nature of the offending'.
117 As stated by Champion J in the recent decision of R v Robertson[11] in the Supreme Court:
'In light of the clearly expressed language of s.5A(3) of the Act, when assessing the objective factors affecting the relative seriousness of the offence, a sentencing court is prevented from taking into account matters personal to the offender, and must determine it wholly by reference to the nature of the offending.'
[11][2019] VSC 145 [56].
118 His Honour in that decision also stated:
'Finally, it has been made clear that the standard sentence scheme does not require or permit the Court to engage in a "two-step approach", involving an initial "classification" of the seriousness of the offending at issue.' [60]
119 Ms Malobabic for the prosecution described your offending as a gross breach of trust. It was. That it was opportunistic, against a vulnerable victim in her own home with a level of planning (albeit of limited duration), not spur of the moment. I agree.
120 That Mrs Montgomery was also a vulnerable victim aged 82, in poor health which would have been obvious to you.
121 The prosecutor referred to the significant adverse impact of your offending upon the victim. She referred to the maximum penalty, 25 years’ imprisonment and a 10 year standard sentence and discussion of the latter, in particular,
Ms Malobabic submitted your offending fell within the medium level of seriousness.
122 In reply, Mr Crisp urged that every case depends on its facts and circumstances and I agree. He referred to the lack of violence in this offending to other cases and I agree.
123 As well as matters personal to you, including your prospects of rehabilitation as I find them to be, I must take into account the need for general deterrence when sentencing you, which is an important sentencing consideration.
124 Regarding the need for specific deterrence, whilst you do not have any prior criminal history, it has relevance given your lack of explanation for it.
125 I must also consider the question of protection of members of the community from you and bear in mind the likelihood of you re-offending. I am concerned about this, despite being aware of the assessment by Mr Healey that you are a low to medium risk of sexual re-offending. There is no explanation of how this offending occurred.
126 I am called on by the Sentencing Act 1991 to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
127 Can you stand, please.
128 I sentence you as follows.
129 On Charge 1, you are convicted and sentenced to eight years’ imprisonment.
130 And I direct that you serve a period of five years and six months before you are eligible for parole.
131 Have a seat.
132 Pursuant to s.6AAA of the Sentencing Act 1991, had you pleaded not guilty to this charge and been found guilty of it, I would have sentenced you to a term of imprisonment of 12 years and set a non-parole period of 10 years.
133 Pursuant to s.18(4), Sentencing Act 1991, I declare that you have spent three days in custody by way of pre-sentence detention up to and including yesterday, which was 23 October 2019 and direct that that be entered into the records of the court.
134 The prosecution were not making an application for a forensic sample pursuant to s.464ZF of the Crimes Act 1958 as confirmed in email correspondence from the prosecution dated 22 October 2019. And I also understand from Mr Crisp that it is not being sought.
135 The prosecution were not seeking an order pursuant to the Sex Offenders Registration Act 2004. I have some concerns about that concession, in particular given your involvement in the aged care industry, however I am not aware of discussions between the parties relevant to this matter. I will not make the order. I assume it is highly unlikely you will be working in this industry again.
136 Now, did you get a - I mean to ask you, I mean to ask you, did you get a copy of that? I was asking whether the 464 applied?
137 MR CRISP: Yes.
138 HER HONOUR: And it has already been taken.
139 MR CRISP: It's agreed.
140 HER HONOUR: Did you get that update?
141 MR CRISP: It's agreed, Your Honour.
142 HER HONOUR: That is fine.
143 MR CRISP: Yes.
144 HER HONOUR: Well, I do not have to make the order because it was already taken.
145 MR CRISP: Yes.
146 HER HONOUR: Just so long as you are aware of that. We did loop you into this correspondence or my associate did. All right, now you agree three days is correct?
147 MR CRISP: Yes.
148 HER HONOUR: Up to and including yesterday. Any other orders?
149 MS McDONNELL: No, Your Honour.
150 HER HONOUR: No, all right. Yes, all right, you will need to go out. Yes, thank you.
- - -
3
3
0