Director of Public Prosecutions v Purcell (a pseudonym)
[2020] VCC 757
•10 June 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GARY PURCELL (A PSEUDONYM) |
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JUDGE: | O'Connell | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 November 2019, 28 February 2020 & 20 April 2020 | |
DATE OF SENTENCE: | 10 June 2020 | |
CASE MAY BE CITED AS: | DPP v Purcell (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 757 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Serious sexual offending against five children aged between 2 and 9 years of age; Sexual penetration of a child under 16; Sexual penetration of a child under 12; Produce and possess child abuse material; Offender subject to mandatory life reporting conditions under the Sex Offenders Registration Act at the time of commission of substantive offences; Plea of guilty; Lengthy procedural history; Relevant criminal history; Offender intellectually disabled and victim of childhood sexual abuse; Verdins principles engaged; Moral culpability moderated but remains relevant; Serious examples of sexual offences against children; Residential Treatment Order not available; Protection of the community principal purpose of sentence; Standard sentence offences; Seriousness of offending warrants non-parole period greater than 60% of total effective head sentence.
Legislation Cited: Sex Offenders Registration Act 2004; Sentencing Act 1991
Cases Cited:R v Verdins (2007) 16 VR 269; Farr v The Queen (2010) 30 VR 219; Director of Public Prosecutions v Tobin (a pseudonym) [2019] VCC 1709; Director of Public Prosecutions v McPherson [2019] VCC 1745, Director of Public Prosecutions v Aneterea (a pseudonym) [2019] VCC 1721; Director of Public Prosecutions v Amaral (a pseudonym) [2019] VCC 2178; Lugo v The Queen [2020] VSCA 75; Director of Public Prosecutions v Green [2020] VSCA 23.
Sentence:Total effective sentence 11 years and 4 months’ imprisonment; Non-parole period 8 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | A. Albert | Office of Public Prosecutions |
| For the Accused | N. Smith (11 November 2019) A. Roodenburg | Victoria Legal Aid |
HIS HONOUR:
Introduction
Gary Purcell[1], you have pleaded guilty to a series of sexual offences against five children aged between two and nine years of age.
[1] A pseudonym.
Your offending encompasses three Indictments spanning the period 1 April 2017 – 12 March 2018:
·Indictment number J10816252A.1 (Indictment A);
·Indictment number J10816252B (Indictment B); and,
·Indictment number K11129906.2 (Indictment C).
The charges included in those Indictments, are:
·two charges of indecent act with a child under 16;
·one charge of sexual penetration of a child under 16;
·one charge of attempted sexual penetration of a child under 16;
·two charges of make/produce child pornography;
·three charges of sexual assault of a child under 16;
·three charges of producing child abuse material;
·one charge of possessing child abuse material;
·one charge of sexual penetration of a child under 12; and,
·eight charges of failing to comply with reporting conditions under the Sex Offenders Registration Act 2004 (‘SORA’).
The five children you abused were:
·Brodie Weston[2] who was born in January 2008 and was nine years of age at the time of the offending;
·Jake Weston[3] who was born in May 2009 and was seven to eight years of age at the time of the offending;
·David Portelli[4] who was born in December 2015 and was two years of age at the time of the offending;
·Lee Forrest[5] who was born in March 2012 and was between five and six years of age at the time of the offending; and
·Taylor Forrest[6] who was born in August 2010 and was seven years of age at the relevant time.
[2] A pseudonym.
[3] A pseudonym.
[4] A pseudonym.
[5] A pseudonym
[6] A pseudonym
At the time of the offending you were 43 – 44 years of age. You lived at Glenorchy, about 55 km south east of Horsham, with your friend George Delaney[7].
[7] A pseudonym.
You had previously been convicted of sexual offending against other children which resulted in you being made subject to mandatory life reporting obligations under the SORA. Part of those obligations required you to report any contact that you had with children to the police. In breach of those obligations, you gained access to these five young children by abusing the trust of friends and relatives in order to sexually assault them. When you did so, you created child-abuse material which was located on your phone. Police also located an additional 22,209 images and 685 videos of child-abuse material on 16 electronic devices found in your possession.
You are now to be sentenced for that offending.
At the plea hearing, Mr Albert, on behalf of the Victorian Director of Public Prosecutions, relied upon an amended summary of prosecution opening on plea of 31 January 2020[8]. The detail of your offending set out in that summary was accepted on your behalf by your counsel, Ms Smith, and at subsequent hearings by Ms Roodenburg, as accurate and will constitute the factual basis for the imposition of your sentence. The following description of your offending is based on that summary.
[8] Exhibit A on the plea.
Brodie Weston and Jake Weston
Brodie Weston and Jake Weston were brothers who lived in Melbourne. Their grandmother, Brenda Crookshank[9], was a long-time friend of Lisa Montgomery[10] who lived next door to you and with whom you had become friendly. You developed a routine where you would go on a walk with Ms Montgomery most mornings.
[9] A pseudonym.
[10] A pseudonym.
During the school holidays of April 2017, Brodie Weston and Jake Weston came to stay with Ms Montgomery. Brodie Weston and Jake Weston accompanied Ms Montgomery, yourself and your partner Mr Delaney on your daily walk. On one of these walks you told the boys that you had games at your house they could play. Afterwards, you all went back to your house and showed the boys a spare room full of toys, including a train set.
Whilst the boys were playing in that room you went in and asked them whether they wanted to keep a secret. According to Brodie Weston, you told him to pull his pants down. Brodie Weston asked you why but nonetheless complied. You then pulled down his underwear and touched his penis. Once you had finished, you told him to pull his pants and underwear back up. That conduct constitutes Charge 1 on Indictment A – Indecent act with a child under 16. A short time later the boys returned to Ms Montgomery’s house.
On another occasion during that same holiday period, Ms Montgomery took the boys to your house to play whilst she was doing some cooking at her house. They were with you for about two hours. You showed the boys your train set and after playing for a time you pushed them onto the bed in a playful manner. You then pulled Brodie Weston’s shorts and underwear down, grabbed his penis, pinched his testicles and sucked on his penis. You also asked Brodie Weston whether he would like you to suck on his testicles. That conduct constitutes Charge 2 on Indictment A – Sexual penetration of a child under 16.
On that same occasion, you directed Brodie Weston to play with the train set and told Jake Weston to go over to the bed. You there attempted to introduce Jake Weston’s penis into your mouth. When Brodie Wilson tried to turn around to see what you were doing up on the bed, you said to him, ‘Hey, what are you doing? Nothing to see here.’ That conduct constitutes Charge 3 on Indictment A – Attempted sexual penetration of a child under 16.
Brodie Wilson told police that you took a photo of his penis. A Samsung mobile phone found at your residence contained an image of Brodie Wilson depicting the area from his lower stomach to his knees with his penis exposed. Brodie Wilson was identified by his clothing. That conduct constitutes Charge 4 on Indictment A – Production of child pornography.
A similar photo of Jake Wilson standing with his penis exposed was also located on your phone. That photo had been taken on the same occasion as Charge 4. That conduct constitutes Charge 5 on Indictment A – Production of child pornography.
In January 2018, Jake Wilson and Brodie Wilson again came to stay with Lisa Montgomery. On one occasion whilst they were playing video games at your house, you asked them whether they wanted to go to Lake Lonsdale. The boys agreed and asked Ms Montgomery to also come. You all then went to the lake for a swim. After doing so, you told Brodie Wilson and Jake Wilson to get changed behind the toilet block. You went with them whilst Ms Montgomery remained on the sand beside the lake.
You told them to pull their pants down and to get their shorts on. As this was done you touched Brodie Wilson’s penis, ‘squeezing it… like a pinch’ as he told police. You then touched Jake Wilson on his penis. That conduct constitutes Charges 6 and 7 on Indictment A – Sexual assault of a child under 16.
On another occasion, Jake Wilson described the boys both getting dressed in a bedroom at Ms Montgomery’s house after a shower. At that time you touched Jake Wilson on the penis and told both boys not to tell anyone about this. That conduct constitutes Charge 8 on Indictment A – Indecent act with a child under 16.
You were interviewed in relation to these allegations on 27 March 2018 and 23 April 2018. In summary, you told the police that the allegations were lies and that you did not sexually touch the boys. You said you had only met them once, that they had not been to your house and that at the lake you went to a building that was locked but that the boys did not follow you. You did however make admissions to taking photographs ‘of their dicks’. You said the boys took their pants down and you probably asked them to stand still.
David Portelli
David Portelli was Lisa Montgomery’s grandson and she would often look after him. He would sometimes stay overnight at her house. Ms Montgomery would take David Portelli on her walks with you and you would play games with him such as giving him piggy back rides, carrying him on your shoulders and pushing his pusher. You attended David Portelli’s second birthday party in December 2017.
In March 2018, you attended at Ms Montgomery’s home and asked if David Portelli wanted to come into Horsham with you. Ms Montgomery did not agree at first but relented when David Portelli became upset. This was the only time that she could recall that you were alone with David Portelli. You were gone for about two to three hours.
When you returned, Ms Montgomery asked you what took you so long and you explained that you had taken David Portelli for a paddle because it was hot. Shortly afterwards, when Ms Montgomery was preparing David Portelli for bed, she noticed that his nappy was fastened differently and his socks were inside-out.
Police found 10 images of David Portelli on three electronic devices in your possession as described in the following table taken from the summary of prosecution opening:
| Device | No. | Image of David Portelli |
| Phone | 5 – 8 | On swing at park (context evidence, penis not exposed, not subject of charge) |
| 9 | On couch with a nappy in hand, naked and penis exposed | |
| 10 | On couch with legs in the air, naked and penis exposed | |
| Apple iPad Mini & Sony C6603 | 2 | Standing in a bucket, naked and penis exposed |
| 3 | Partially wrapped in a towel, sitting in a chair with keys in his mouth, naked and penis exposed | |
| 4 | Sitting on a toilet reading a book, naked and penis exposed | |
| 11 | On back seat of a car with legs open, naked and penis exposed |
The production of those images constitutes Charge 9 on Indictment A – Production of child abuse material.
In your interviews with police, you denied ever taking David Portelli to the lake without Ms Montgomery. You also denied changing David Portelli’s nappy without her being present.
You did say that you did take images of David Portelli. You also said that you had received images of David Portelli from Ms Montgomery showing him in a bucket whilst naked. You said the swing images (photos 5 – 8) were taken by Ms Montgomery after she had removed David Portelli’s nappy using your phone because she did not have her phone with her. You suggested that she then sent those images to herself.
You also stated that there was a time when you went to the lake with Ms Montgomery and David Portelli and that at some stage you took photos of David Portelli naked which were sent to Ms Montgomery. In her statement to police, Ms Montgomery denied all of your assertions concerning those photographs.
Lee Forrest and Taylor Forrest
During the period December 2017 to March 2018, your sister Sharon Forrest[11], lived in Maryborough with her then husband and seven children who ranged in age from 15 to one.
[11] A pseudonym.
On Thursday 8 March 2018, you asked your sister if you could stay at her house over the long weekend. She agreed and you arrived on the evening of Friday, 9 March 2018 and arranged to sleep on a blow up mattress in the lounge room.
During your stay you engaged in activities such as playing Monopoly with the family on the Saturday evening and attending a car show on the Sunday.
On Monday 12 March 2018, one of Sharon Forrest’s older children was playing a game on your phone when he came across abusive images of Lee Forrest with his penis exposed. Eventually these were shown to Sharon Forrest who, using her own phone, photographed the images and showed them to her husband. They confronted you and you denied that you had indecently touched Lee Forrest, or taken the images. You were assaulted in this confrontation and fled.
Sharon Forrest then reported the matter to police. On 16 March 2018, Lee Forrest complained to his mother that ‘Gary was playing with my private part…’.
During the investigation, police tried unsuccessfully to have Taylor Forrest and Lee Forrest describe what had happened on a video recorded statement. However, Sharon Forrest and her husband later separated and six of their seven children were assessed by a psychologist at the Children’s Court. During that assessment, Taylor Forrest told the psychologist that you had sexually abused Lee Forrest. This was reported to police and on 24 April 2019, Taylor Forrest made a video recorded interview in which he described the following.
On the first day of your visit, he saw you standing in the hallway when Lee Forrest pulled down his pants and you then pulled his underpants down and took pictures of Lee Forrest’s penis. On the next day, he saw you sitting on the couch with Lee Forrest. You were in your underwear and Lee Forrest’s shorts and underpants were at his feet. You were observed to take pictures of Lee Forrest and Lee Forrest also took pictures of your penis.
Police located eight images on your phone and seven images on electronic devices in your house with Lee Forrest in various sexualised positions with his penis exposed. That conduct constitutes Charge 10 on Indictment A – Production of child abuse material.
On Sunday morning, 11 March 2018, Sharon Forrest’s husband walked into the lounge room and saw Lee Forrest asleep in bed with you. When interviewed by police you admitted three instances of sexual activity with Lee Forrest.
You said that Lee Forrest would wake up each morning and come into the lounge room and climb into your bed. You said on one occasion Lee Forrest dropped his pants and asked you to play with his penis. You said Lee Forrest ‘did not force my hand down his pants to pull his penis out, he dropped his pants, he wanted me to play with his penis. And that’s the truth…’. You admitted that you touched Lee Forrest’s penis. You said that there was no ‘jerking him off to make him harder’, however you described using your hand to go up and down on Lee Forrest’s penis for a couple of minutes. You said you did not do anything else to Lee Forrest, you said ‘I didn’t shove it up his bum or anything’.
You also told police there was an occasion where you caused Lee Forrest to touch your erect penis for a couple of minutes in an ‘up and down’ motion. You said you did not ejaculate.
You further said that there was a time where your penis had touched Lee Forrest’s penis whilst you were both erect. You called this ‘playing dickies’. You explained that you had rolled over so as to be facing each other, and that you were ‘just more or less… close enough to touch dicks’.
Those three instances of sexual assault constitute Charge 11 (rolled-up charge) on Indictment A – Sexual assault of a child under 16.
Taylor Forrest also described to police an incident which occurred on the last day of your stay at Sharon Forrest’s house. He heard you and Lee Forrest talking in the lounge room and peered through the gap in the lounge room door. He saw you kneel on the floor and put Lee Forrest’s penis in your mouth. That conduct constitutes Charge 1 on Indictment C – Sexual penetration of a child under 12.
When you were interviewed on 27 March 2018, police asked you whether you had any more photographs of children. You then explained that you had been at Sharon Forrest’s home in December 2017 when Ms Forrest and the others were outside. You were in the loungeroom with Taylor Forrest when he ‘dropped his pants’ and showed you his penis. You then took a photo of Taylor Forrest because you ‘just wanted to. No other reason.’ Police located an image fitting that description on your phone, however it was taken on 9 March 2018. That conduct constitutes Charge 12 on Indictment A – Production of child abuse material.
On 27 March 2018, police executed a search warrant at you residence and seized a number of electronic devices. Subsequent analysis revealed that 16 of those devices contained a total of 22,209 images and 685 videos of child abuse material. An additional 11,034 images of what was described as ‘non-illegal images of child material’ was also located.
| Category | Total images | Total videos | Category 7 Non illegal child material | ||||
| 1 Children with no sexual activity | 2 Solo masturbation by a child or sex acts between children | 3 Non-penetrative sexual activity between child(ren) and adult(s) | 4 Penetrative sexual activity between child(ren) and adult(s) | 6 | |||
| 10,885 | 270 | 69 | 1310 | 10,295 | 22,209 | 685 | 11,034 |
Those images were categorised in the following way:
The possession of those images and videos constitutes Charge 13 on Indictment A – Possessing child abuse material.
Sex Offender Registration Act offences
Indictment B deals with eight contraventions of your reporting obligations under the SORA. To understand those contraventions, it is necessary to set out your criminal history.
On 16 December 2003, you were convicted and placed on a Community Based Order (‘CBO’) in respect of one charge of indecent act with a child under the age of 16.
On 18 February 2011, you were convicted and sentenced to 12 months imprisonment, wholly suspended for a period of two years, in respect of one charge of make/produce child pornography. You were also convicted of a further three charges of make/produce child pornography, knowingly possess child pornography and indecent act with a child under 16. In addition, you were placed on a two year CBO.
I will set out the circumstances of those incidents below.
Your conviction on those offences resulted in an order that you be subject to the reporting obligations under the SORA for the rest of your life.
In the period of April 2017 through to March 2018, you contravened those obligations on eight occasions.
For periods in April 2017, September – October 2017 and January 2018, you failed to comply with your reporting obligations by having contact with Brodie Weston and Jake Weston without reporting that contact to police. That conduct constitutes Charges 1, 2 and 5 on Indictment B.
For periods during December 2017 and January – March 2018, you failed to comply with your reporting obligations by having contact with Brodie Weston without reporting that contact to the police. That conduct constitutes Charges 3 and 6 on Indictment B.
Finally, for periods in December 2017, February 2018 and March 2018, you also failed to comply with your reporting conditions by having contact with Taylor Forrest, Lee Forrest and their five siblings without reporting that contact to police. That conduct constitutes Charges 4, 7 and 8 on Indictment B.
Victim impact
Brodie Weston and Jake Weston
Both Brodie Weston, Jake Weston, their mother, their biological father and step-father provided statements which describe the impact your crimes have had. Clearly the impact has been devastating. Before this offending, both Brodie and Jake Weston were happy, normal, outgoing boys. During the offending period, however, their parents noticed that they seemed to become more anxious and fearful. Overtime, those symptoms worsened and remain concerning. Both boys continue to struggle with routine aspects of their life such as socialising at school, sleeping, toileting and behavioural issues.
The parents have found the process of supporting their sons and dealing with their own emotions about what happened, enormously stressful.
David Portelli
David Portelli’s mother, in her victim impact statement, states ‘I feel I have failed as a mother. I feel I have let my son and my family down by not protecting my baby boy.’
Understandably, she feels angry, hurt and upset that you could have so blatantly abused the trust that was placed in you to exploit her child by creating the abusive material that you did. She says she is now scared to let anyone near her child ever again. She has since developed symptoms of anxiety and depression that has made coping with everyday life far more difficult.
Lee Forrest and Taylor Forrest
According to the prosecution opening, Lee Forrest was a vulnerable child not simply because he was only six years of age at the time, but also because he suffered from spina bifida occulta which caused physical deficits and emotional problems. He also had significant development delays with respect to speech and language.
His foster carer, who provided a victim impact statement, describes him having an intellectual disability. Before the assault she observed that he functioned with a reduced capacity, but was nonetheless a happy child who was doing well within his limitations. After the assault, his behaviour changed in that he became withdrawn and prone to outbursts. He also became defiant, uncooperative and was seen to engage in some sexualised behaviour. These behaviours have led to his being rejected by friends and becoming isolated.
Lee Forrest and Taylor Forrest’s mother also provided a victim impact statement. She feels the breach of trust that your offending against her sons involved, acutely. She has lost faith in extended family and despite being very much in need of their support, she doesn’t feel that can trust anyone enough to seek that support.
You should understand that the impact your offending has on the victims and those close to them is a very important consideration in formulating the sentence that must be imposed.
Procedural history
For various reasons, this proceeding has had a lengthy history. It is necessary to set out something of the procedural history so as to appreciate the timing of the pleas and the delay until finalisation.
Date
Event
27 March 2018
First police interview
· Charged, remanded in custody
23 April 2018
Second police interview
2 May 2018
Filing hearing
27 June 2018
Committal mention
22 August 2018
Committal – Day 1 (informant only)
21 September 2018
Committal – Day 2
· Gary PURCELL indicates intention to plead guilty to certain charges
29 September 2018
Defence confirmed intention for pleas to be entered to offending involving all allegations except contact offending against Brodie Weston and Jake Weston
3 October 2018
Initial directions hearing
29 October 2018
Further directions hearing
· Trial Indictment and prosecution opening filed
· Matter listed for Trial on 25 March 2019
17 December 2018
Further directions hearing – administratively adjourned
25 January 2019
Further directions hearing
8 March 2019
Matters resolved
12 March 2019
Final Directions Hearing
· Adjourned for Arraignment on 14 March 2020
14 March 2019
Arraignment
· Written Plea/Arraignment on Indictment A
· Written Plea/Arraignment on Indictment B
· Plea listed for 13 June 2019
24 April 2019
VARE conducted with Taylor Forrest and Lee Forrest
Further charges laid alleging sexual penetration of Lee Forrest6 May 2019
Filing Hearing – Indictment C
16 May 2019
Special Mention
· Plea date of 13 June 2019 vacated, re-listed on 17 September 2019
22 May 2019
Special Mention
· Plea date of 17 September 2019 vacated, re-listed on 3 October 2019
29 May 2019
Committal Mention – Indictment C
18 July 2019
Mention
· Noted that the accused is pleading not guilty to three new offences related to Lee Forrest
13 August 2019
Mention
21, 22 August 2019
Return of defence subpoena
2 September 2019
Application by defence for certification to appeal against order refusing defence application for release of material – certification refused
12 September 2019
S 198A Application (4 witnesses granted)
Defence application to adjourn s 198 hearing/pre-recording of evidence as VARE of Taylor Forrest not provided in sufficient time16 September 2019
S 198A Hearing
19 September 2019
Ground Rules Hearing
20 September 2019
S 198A Hearing
· Plea offer made by defence, matter resolves to plea prior to s 198A hearing proceeding in relation to outstanding three witnesses
· Plea Indictment C filed
· Arraignment
· Plea date of 3 October 2019 vacated, re-listed on 11 November 2019
11 November 2019
Plea hearing (Indictments A, B and C) commences
· Pre-sentence report, statement of intellectual disability and plan of available services ordered pursuant to s 82AA (for Residential treatment order, (RTO)) of the Sentencing Act 1991
28 February 2020
Further plea
· Evidence from Ms Kate Gordes, Clinician DFATs
20 April 2020
Further plea
· Amended prosecution opening filed
· Parties accept RTO not open
10 June 2020
For Sentence
Suffice to say for present purposes that the delay in finalising this matter was due to a complex of factors, many of which were beyond your control. I will deal with the conclusions to be drawn from the procedural delay when I come to my findings shortly.
Personal history
You were born on 7 May 1974 and are now 46 years of age. As I indicated, you were between 42 and 43 years of age at the time of the offending. You also have, as I have indicated, relevant prior convictions.
You have a significant intellectual disability. A neuropsychologist, Ms Jane Lofthouse, assessed you in March of 2019 and in her report of 8 April 2019 stated:
Mr Purcell’s composite score on the Wechsler Adult Intelligence Scale, as expressed by his Full Scale Intelligence Quotient, was 60 and within the extremely low range (below the first percentile). This score is significantly below average, falling in the mildly intellectually disabled range and indicates that Mr Purcell’s score is better than or equal to less than one percent of like age individuals. The majority of Mr Purcell’s subtest and index scores were significantly below average and fell in the borderline and extremely low ranges being commensurate with his predicted premorbid intellectual function. Mr Purcell’s scores suggested that he is better able to process nonverbal material in comparison to verbal material with his Perceptual Reasoning Index (nonverbal material) being 71 and within the borderline range (at the third percentile) and his Verbal Comprehension Index (verbal material) being 61 and within the extremely low range (below the first percentile). This difference was of limited interpretive value as Mr Purcell’s scores on the nonverbal scale were still significantly below average.
You spent the earlier part of your childhood in Morwell. Your father left the family home when you were very young. You have one older brother, a twin brother and a younger step-sister, Sharon Forrest the mother of Lee Forrest and Taylor Forrest. You no longer have contact with your brothers.
For reasons that are not altogether clear, you were placed into the care of what is now the Department of Health and Human Services (‘DHHS’) when you were nine years of age, although some material suggests that it may have been earlier. You describe being ‘in and out’ of foster care for a time until you were placed in the Baltara Boys home with your twin brother.
You attended special schools in Moe, Ascot Vale and South Melbourne and you were assessed as eligible to receive disability services when you were 13. You have received the Disability Support Pension since you were 18.
Whilst you were a resident at Baltara, you were the victim of repeated sexual abuse perpetrated by a staff member. The abuse started when you were required to shower in front of the staff member and escalated to oral and anal penetration. I will deal with the significance of this abuse when I refer to the expert evidence.
From the age of 16 through until your early twenties, you went to live with an aunt and uncle in Gippsland. You were there also sexually abused in a similar manner by your uncle.
You then reunited with your father and for a time lived in a caravan on his property in Cranbourne. From about your mid-twenties until your remand into custody in March 2018, you lived with an older friend, George Delaney[12]. You lived with him in a number of places throughout regional Victoria, the last of which was in Glenorchy where some of these offences were committed. Whilst you have been in custody, Mr Delaney passed away. Your only visitors in custody have been his two daughters. Since the COVID-19 restrictions were introduced, you have maintained weekly phone contact with one of those daughters.
[12] A pseudonym.
Over the years, you have worked in a number of jobs such as a farm hand, labouring in a factory and cleaning. Whilst you have been in custody, you have been working making number plates. You have also tried to undertake classes in basic English and Maths, but that is not possible in the present circumstances.
Prior convictions
As I have indicated, your criminal history involves relevant offending. On 16 December 2003, you were before the Geelong Magistrates’ Court in relation to one charge of indecent act with a child under the age of 16. I was informed that offence was committed on 6 September 2003 in circumstances where you were assisting someone to move house and, in the course of doing so, touched a boy’s penis and caused the child to touch your penis. I was not told the boy’s age. In respect of that matter, you were convicted and placed on a CBO for a period of 12 months. The condition of that order was that you were to participate in the services specified in a Justice Plan.
On 18 February 2011, you were before the Geelong Magistrates’ Court in relation to another charge of indecent act with a child under 16, three charges of making/producing child pornography and one charge of possessing child pornography. The indecent act charge was alleged to have occurred between 23 and 27 July 2010, and involved you touching an eight year old girl on her breast underneath her clothing. The police investigation also found that you were in possession of 89 images of child pornography.
You were sentenced to 12 months’ imprisonment wholly suspended for a period of two years, in combination with a two year CBO. Among the conditions of that order was the requirement that you be assessed for participation in the Sex Offender Program. As I have also indicated, you were made subject to the requirements of the SORA for the rest of your life.
Expert evidence
Ms Lofthouse’s neuropsychological testing placed your Full Scale Intelligence Quotient within the ‘extremely low’ range, marked by global deficits across all tests. The profile was consistent with the assessment conducted by DHHS in 1987, suggesting long standing deficits which have not changed over that time. Your capacity to draw on verbal information, such as remembering, learning and understanding the rules of the wider community are significantly impaired (you have a reading age of an eight year old).
Ms Lofthouse states:
Of some concern is the significant level of Mr Purcell’s executive dysfunction marked by his impaired ability to solve problems and plan in a flexible and abstract manner. Mr Purcell’s thinking is based on concrete and literal concepts which will impinge on his ability to think through the problems he faces in a reasoned an informed manner. Mr Purcell also demonstrated a lack of insight during the assessment and is probably reliant on over learnt responses which are typically impulsive and, to some extent, consistent with the behaviour that led to his current charges.
Due to the significant nature of Mr Purcell’s intellectual impairment he will be unable to fully benefit from mainstream rehabilitation programs that are dependent on communication skills, presented at a normal pace and require the capacity to learn within an average time frame. Mr Purcell indicated that, although he is enjoying engaging in a remedial literacy and numeracy program, he is struggling to progress in these classes. Mr Purcell requires concrete, simple, repetitive and short directions and is likely to be better able to benefit from one to one interventions. It is more than likely that Mr Purcell’s intellectual impairment has impinged on his ability to form relationships where he can express his sexual desires in an appropriate manner and he will benefit from tuition in strategies he may utilise in forming positive relationships and also training in the appropriate expression of sexual behaviours. If Mr Purcell is able to engage in these programs, even at a simple level, his risk of reoffending might be reduced. Ongoing rehabilitation should be considered after he is released back into the community if he is to achieve a degree of behavioural regulation and he will also require strict monitoring to reduce his risk of reoffending. It appears that Mr Delaney provided Mr Purcell with support in the community and now that he is deceased Mr Purcell will require a significant level of support to manage on a day today basis. Positive gains in treatment interventions are only likely to be achieved in the long term and goals should only be developed based on realistic outcomes. Mr Purcell will be better able to respond to environmental restraints such as exclusion from contact with children and restrictions on his access to the community.
Ms Lofthouse formed the view that your global intellectual impairment is likely to impinge on your ability for reasoned and informed problem solving and to appropriately control your behaviour. She believes that your intellectual impairment would have been a significant factor in your criminal offending.
As to the manner in which you deal with your incarceration, she stated:
Mr Purcell stated that he is happy during his current period of incarceration and it has probably provided him with a structured and simple environment and assisted him function and attend to his activities of daily living. It would appear that Mr Purcell would not find a period of incarceration more difficult than persons that do not suffer from intellectual impairment although in comparison to other individuals he would not be able to complete Court orders without a significant level of support.
A consultant psychologist, Simon Candlish, also assessed you and provided a risk assessment as to your potential for recidivism. Mr Candlish concluded that you met the criteria for ‘Paedophilic Disorder (likely exclusive type, male)’.
In oral evidence before me on 11 November 2019, Mr Candlish explained that your paedophilic disorder involves an entrenched sexual interest and arousal to children which impacts upon your ability to function.
He conducted detailed testing as to your personality and risk of recidivism. He found, in testing with respect to personality disorders, that you fell into the ‘non-psychopathic’ range. He noted your presentation as showing obvious signs of cognitive compromise with a slow response style. He found your responses to be ‘highly concrete’ with limited self-reflection, low emotional awareness and poor insight particularly in relation to sexual deviance. He noted that your insight into the impact of your behaviour on children you have abused appeared limited and such poor insight was likely due to your cognitive deficits.
A number of psychological tools were employed to evaluate your risk of sexual reoffending. Mr Candlish concluded that you fall into the high risk category for further sexual offending in the absence of any further interventions.
Mr Candlish also formed the view that the extensive sexual abuse you were subjected to at Baltara was likely to have contributed to your ‘early sexualisation and the development of deviant sexual scripts from childhood’. He considered that:
The impact of repeated sexual abuse might have initially led to erroneous assumptions that such behaviour is part of sexual development and he might have blamed himself for the abuse. He might have minimised his own engagement in sexual offending feeling it was less harmful compared to the sexual abuse he experienced. Mr Purcell’s sexual abuse appears to have contributed to the development of deviant sexual interests.
… Mr Purcell’s cognitive impairment has contributed to emotional and social difficulties and possible feelings of inadequacy and alienation. It appears that he has felt less comfortable around adults. [13]
[13] Report of Simon Candlish, psychologist, of 29 May 2019, paras 132 – 134.
In a subsequent report of 6 November 2019, Mr Candlish characterised these matters as possibilities which might account for your distortions and the perpetration of your abuse[14]. In oral evidence, I took Mr Candlish to firm up the view that there was a connection between your offending and your history of sexual abuse.[15]
[14] Ibid at para 25.
[15] Transcript of plea hearing of 11 November 2019 at p 49, line 12.
It also appears that your regular viewing of child abuse material has served to maintain your paedophilic sexual interests and reinforced distorted attitudes.
One aspect of Mr Candlish’s opinion which received quite a bit of attention on the plea was the assertion that ‘Mr Purcell appears to show good prospects for rehabilitation based on his presentation and his history’.[16] He confirmed that view in oral evidence.[17] It is clear, however, that view is premised on you receiving very highly intensive, targeted treatment.[18]
[16] Ibid n2, at para 139.
[17] Ibid n4, at p 50, line 19.
[18] Ibid at p 56, line 16.
Moreover, a reduction in the high risk of reoffending could only be achieved if you were to learn to effectively manage your deviant sexual interests, meet your sexual needs with appropriately aged peers, develop a greater awareness of the harm caused by this type of offending, avoid unsupervised contact with children and cultivate meaningful relationships with adults. As Mr Albert pointed out in cross-examination, achieving those goals would involve a long and difficult process.[19]
[19] Ibid at pp 59 – 60.
Initial defence submissions
Ms Smith, who appeared on your behalf on the first occasion, relied on the assessments of both Ms Lofthouse and Mr Candlish to submit that there was a causal connection between your intellectual disability and your offending, such as to engage the principles in Verdins[20] case. It would follow that general, and perhaps specific deterrence, would thereby be moderated. However, it was quite properly acknowledged that the sentencing purpose of protection of the community acquired particular significance in this case.
[20]R v Verdins (2007) 16 VR 269, (‘Verdins’).
Nonetheless, having regard to your disadvantaged background, including the fact that you had yourself been a victim of sexual abuse, your plea of guilty, the need to moderate general and specific deterrence, and what was said to be your good prospects for rehabilitation, it was submitted that you should be assessed to undertake a Residential Treatment Order (‘RTO’) under s 82AA of the Sentencing Act 1991 (‘the Act’). In support of that submission, Ms Smith relied on Farr v The Queen[21] to submit that disposition offered the most comprehensive and thorough means of treating you whilst detaining you and protecting the community for a period of up to five years.
[21]Farr v The Queen (2010) 30 VR 219.
Without reciting all of the detail, there was, unfortunately, a lengthy delay in the obtaining of the appropriate report assessing your suitability for such an order, which is set out in the procedural chronology.
Residential Treatment Order not available
Section 82AA of the Act enables an offender to be detained in a residential treatment facility if found guilty of a ‘serious offence’ as defined in the Act[22]. The serious offences for the purposes of s 82AA(1)(a) of which you have been found guilty were Charges 2 (sexual penetration of a child under the age of 16) and Charge 3 (attempted sexual penetration of a child under the age of 16) on Indictment A, and Charge 1 (sexual penetration of a child under the age of 12) on Indictment C.
[22] See s 3, definition of ‘serious offence’.
A second pre-sentence report indicated that you had been assessed as meeting each of the criteria set out in s 152 of the Disability Act 2006 necessary for the making of a RTO. Such an order would have required you to reside in a secure facility and undertake intensive treatment. It was further indicated, however, that a place in the facility would not likely become available until July 2020 and, even at that point, there was a good deal of uncertainty as to whether you would be offered that place because of the demand for places by other candidates.
Shortly before the recommencement of the plea on 20 April 2020, the prosecution referred the court to s 5(2G) of the Sentencing Act 1991. The effect of that provision is to require that an offender must be sentenced to a term of imprisonment for what is defined as a ‘category 1 offence’. The offences of sexual penetration of a child under the age of 16, and that of sexual penetration of a child under the age of 12, are both category 1 offences.
Section 5(2G) commenced operation on 20 March 2017 and the transitional provision applicable to it deems that it applies to the sentencing of an offender on or after its commencement.[23] Certain category 1 offences are designated offences which, if special reasons exist, leave an RTO open. These offences, however, are not designated offences.
[23] Section 160 of the Sentencing Act 1991 as inserted by Sentencing (Community Correction Order) and Other Acts Amendment Act 2016 (Vic).
It followed that Charge 2 on Indictment A, and Charge 1 on Indictment C, could not be the subject of a RTO. Ms Roodenburg, who appeared on your behalf when the plea hearing returned before me, accepted that this was so although she pointed out Charge 3 on Indictment A was not excluded. She advised the Court that she did not wish to further pursue the submission that you could be placed on a RTO. Accordingly, further submissions in mitigation were made.
Further defence submissions
In addition to the matters in mitigation I have already set out, it was noted that Charge 11 on Indictment A was a standard sentence offence, being a rolled-up charge of sexual assault of a child under the age of 16 where three instances of assault constituted the charge. It was submitted that offending occurred on one occasion, was of short duration and was properly characterised as opportunistic rather than planned. There was also a lack of aggravating features such as threats, coercion or degrading conduct. Overall, it was argued that the offending was within the lower range of seriousness.
Charge 1 on Indictment C, it was submitted, was similarly of short duration and lacked premeditation. The objective of gravity of that offence fell below mid-range seriousness, it was argued.
I was referred to four cases from this Court concerning sentencing for the standard sentencing offences of sexual assault of a child under the age of 16, sexual penetration of a child under the age of 16 and penetration of a child under the age of 12. They were: DPP v Tobin (a pseudonym)[24], DPP v McPherson[25], DPP v Aneterea (a pseudonym)[26] and DPP v Amaral (a pseudonym)[27]. Ms Roodenburg submitted that properly analysed, the facts of those cases were objectively more serious than this case.
[24][2019] VCC 1709.
[25][2019] VCC 1745.
[26][2019] VCC 1721.
[27][2019] VCC 2178.
I was also referred to the decision of the five member Court of Appeal in Lugo v The Queen[28]. That case dealt with two charges of sexual assault of a child under the age of 16 and one charge of indecent act with a child under the age of 16, where one of the sexual assault charges was a standard sentence offence.
[28][2020] VSCA 75.
An argument suggesting that impermissible weight had been given to the standard sentence offence resulting in a sentence for that offence that was beyond the range reasonably open, was rejected. The Court indicated that the sentencing judge was required to take into account two particular matters which were not relevant to the non-standard sentence offences. The first was that four years was the standard sentence for offences of mid-range seriousness. The second was that the sentencing judge was precluded from taking into account sentencing practice before the introduction of the standard sentencing scheme.
Ms Roodenburg submitted that there was little to be gleaned from that decision for the purposes of this sentencing exercise. She relied upon the mitigating features of your deprived childhood, the nexus between your own sexual abuse and your offending, and the applicability of the principles derived from Verdins, to distinguish your case from the comparative authorities referred to.
As to the relevance of your disadvantaged background, particularly your sexual abuse, that factor received added impetus given the recent decision in DPP v Green[29]. The principle, which it was submitted was apposite to you, was that where the offender has been subjected to significant abuse and degradation during the formative years of their life, it is not realistic to equate their culpability with that of a person who has had the advantage of a normal stable and regular home environment.[30]
[29]Director of Public Prosecutions v Green [2020] VSCA 23, (‘Green’).
[30]Ibid n18, at [83].
As to your possession of the child abuse material involving 22,000 images and 700 videos, it was submitted that the vast majority of those images, that is more than 20,000 of them, fell into category 1 or category 6, being the least serious categories.
The SORA offences were by and large constituted by the substantive offences in Indictments A and C. Accordingly, it was important to ensure that you were not doubly punished for those offences.
The sentencing considerations relevant to the COVID-19 crisis were also relied upon in mitigation. Those considerations added to the utilitarian value of your plea. You will experience imprisonment with greater restrictions, without access to educational and rehabilitative programs, and without any contact visits. You will also experience anxiety as to the greater likelihood of becoming infected in prison. As at June 2020, those considerations remain very real.
Finally, it was submitted that, in the case of a standard sentence offence, pursuant to s 11A of the Act, the court must fix a non-parole period of at least 60% of the total effective sentence, if that sentence is less than 20 years, unless the court considers it is not in the interests of justice to do so. Ms Roodenberg submitted that an appropriate balance of the competing sentencing purposes would best be achieved by a lengthy period of supervision in the community on parole, and therefore submitted that a non-parole period of less than 60% of the total effective sentence should be fixed.
Prosecution submissions
Mr Albert submitted that imprisonment was the only appropriate disposition in this case, even allowing for mitigating factors such as your intellectual disability and deprived background. This offending occurred over the space of approximately one year and involved eight sexual assault offences against three children aged between five and nine. It also involved six offences of producing and possessing child abuse material using those children and two others. You also possessed an extensive library of child abuse material.
Charge 11 on Indictment A is a standard sentence offence where the standard sentence prescribed is four years. Charge 1 on Indictment C is a standard sentence offence where the standard sentence prescribed is 10 years. The victim for each of those offences is Lee Forrest. He was six years of age at the time and was particularly vulnerable in that he suffered from spina bifida and had emotional and intellectual deficits. He was your nephew and you were a trusted member of the family. Your abuse of Lee Forrest, it was submitted, was particularly brazen occurring as it did under the pretext of a family visit over a long weekend.
Likewise, your offending against Jake Weston and Brodie Weston was predatory and needed to be assessed against a background where you knew you should have been reporting your contact with these young children.
In addition, it was important to not lose sight of the terrible impact this offending has had on these children and their families.
This was a case, he submitted, where specific deterrence was particularly important. You have two prior convictions for committing an indecent act with a child and six previous convictions for dealing with child pornography. You also committed these offences whilst you are subject to the reporting obligations under SORA, which you failed to comply with.
Finally, you must be sentenced as a serious sexual offender and as such, the court must regard protection of the community as the principal purpose for which sentence must be imposed.
Findings
Turning to my findings, there are two particular features of the offences to which you have pleaded guilty which render them serious examples of this type of offending. The first relates to the way you gained access to these children. The second is how very young and vulnerable they were.
In my assessment, a striking feature of your offending was how preventable it was. Despite your disability, you knew you had a sexual interest in young male children. Despite your disability, you knew it was wrong to engage with any children sexually. Despite your disability, you knew you should not have contact with children without it being reported to the police. Despite knowing all of that, you committed these offences and hid that fact from those that trusted you with those children.
To be clear, if Ms Montgomery had any idea of your ulterior motives in engaging with Jake Weston, Brodie Weston or David Portelli, I have no doubt she would have acted to protect them from you. If Sharon Forrest had been given any idea of your sexual interest in her younger children, she would not have let you into her home. You hid that interest and that enabled you to commit these offences.
I do not accept the defence contention to the effect that each of these offences was essentially opportunistic and spontaneous. In truth, you gained access to these children by concealing your true motives. In my view, that was predatory.
The other particularly serious feature of your offending was the very young age of your victims. They were aged between five and nine when you sexually assaulted them. David Portelli was just two when you used him to make child abuse material.
It is true, as your counsel submitted, that your offending lacked some of the features associated with the most serious examples of this type of offending. For example, there is no suggestion of violence, threats or coercion. But to say in effect that your offending could have been worse, should not detract from recognising how heinous it really was.
Jake and Brodie Weston have had their normal development severely disrupted. The dire, long term effects of such abuse is seen by this court all too often. I can only hope that with the support they clearly have from their parents, they can, in time, overcome the terrible effects of what you did as described in the victim impact statements.
David Portelli’s mother was horrified that you could use her child to create the abusive images you did. As I have suggested, the fact that he was just two years old is a particularly aggravating feature.
Lee Forrest, who was six years of age, has also been badly effected. He already suffers from physical and mental disabilities that make life challenging for him. It is clear that your actions has set back the progress that he had been making, immeasurably.
The impact your offending has had on your victims serves to emphasise why it is important to protect children from you. Parliament has determined that because you were sentenced to a term of imprisonment in 2011, albeit a suspended sentence, and you will be sentenced to a term of imprisonment on Charge 1 on Indictment A, you will thereafter be sentenced as a serious sexual offender[31]. In determining the length of the sentence, I must regard protection of the community as the principal purpose for which sentence is imposed[32].
[31] The status of serious sexual offender does not apply to Indictment B.
[32] Section 6D(a) of the Sentencing Act. It was not contended that a disproportionate sentence be imposed,
s6D(b).
I do accept that your intellectual disability is linked to your offending. Your ability to control your behaviour, to reason carefully and to understand the impact of sexually assaulting children, is limited. The principles in Verdins in my view are properly engaged. In particular, your disability renders you less suitable as a vehicle for general deterrence.
Consistent with those principles your moral culpability is reduced, all the more so when one has regard to your deprived background[33], particularly your history of sexual abuse which I will deal with shortly. That said, I regard your moral culpability in this instance as still relevant, because you at least had a basic understanding that you shouldn’t be having access to these children, and contrived to do so knowing you would engage with them sexually if the opportunity arose.
[33] See DPP v Green [2020] VSCA 23 at [83]; DPP v Drake [2019] VSCA 293 at [32].
Similarly, you had been before the courts before with respect to sexual assaults and child pornography – there was no question you knew such activity was wrong. You also knew you had an ongoing obligation to report contact with children. I do not think it unreasonable to conclude that you understood there might well be consequences for your conduct. In that sense, specific deterrence still has some work to do, though I will not emphasise that sentencing purpose to the same degree as a person not afflicted with your disability.
The expert evidence does not suggest that imprisonment will be more onerous for you as compared to an ordinary inmate, nor does it suggest that it will have a particularly adverse effect on your mental health. On the contrary, you appear to respond reasonably well to the prison environment.
The next point to make is that you have pleaded guilty and you should understand that I will reduce the sentence substantially because you have done so.
The timing of your plea was the subject of quite a bit of discussion because it was staggered. I need not rehearse the detail of the procedural history which has already been set out, but the salient dates are these:
- You indicated pleas of guilty to much of what is now Indictment A and B on the second day of committal in September 2018;
- The contact offending on Brodie Weston and Jake Weston proceeded to trial in this Court and was listed for 25 March 2019, but resolved as pleas of guilty on 11 March 2019; and
- Indictment C was only charged in May 2019 and resolved after a s 198 of the Criminal Procedure Act 2009 hearing in this Court on 20 September 2019.
In assessing the value of your plea, I have determined to take what I would describe as a practical approach. Because of your disability, your legal advisors needed to proceed with caution. In particular, expert advice was required to understand the nature of your disability, your capacity to instruct and the extent of your insight. Your denials with respect to the Jake Weston, Brodie Weston and David Portelli allegations did not help that process. On the other hand, your admissions with respect to Lee Forrest were particularly significant. On the whole, I am satisfied that the pleas were made with a genuine willingness to facilitate the course of justice.
Whilst, it cannot be said the pleas were entered at the earliest opportunity, they were nevertheless timely. Importantly, no child was cross examined and no trials took place. Your pleas of guilty have spared the complainants a great deal of anguish and saved the community considerable expense. It is for those reasons your pleas of guilty will substantially reduce your sentence.
Given your disability, lack of insight and the cognitive distortions that form part of your disorder, it does not seem fair or appropriate to speak of a lack of remorse. Comments such as “[your sister’s] got to realise [Lee Forrest] wanted it as well” should be better seen as demonstrating why specific intensive treatment is required.
Although Mr Candlish’s opinion as to the nexus between the sexual abuse you suffered as a child and your offending was initially expressed in fairly speculative terms, he was more confident of that nexus in oral evidence. I am prepared to accept that there is such a nexus. The effects of such abuse are now much better understood and someone with an intellectual disability such as yours is very likely to have had their sexual development distorted as Mr Candlish suggested. On the basis of that nexus, your moral culpability is reduced, though for the reasons I have explained, not eliminated.
More generally as to your background, the abuse and deprivation you yourself experienced as a child was shameful. You have had very little if any opportunity in life. I will take your history of disadvantage into account in your favour.
I will also take into account in your favour the fact that you must undergo imprisonment during the COVID-19 crisis. Your prison regime will be much more restrictive, you will not receive visits from Mr Delaney’s daughters and you will not have access to the educational courses and treatment that you badly need. Those restrictions together with the anxiety produced by the potential of infection within the prison system mitigate the sentence I will impose.
With respect to your prospects for rehabilitation, I do not accept that they are good. I am satisfied that you have the capacity to rehabilitate should you receive the sort of targeted intensive treatment envisaged by Mr Candlish, and provided you apply yourself to that treatment. However, the problems that have led to your offending appear to be long-standing, entrenched and not easily resolved. Were you to be released into the community forthwith, the risk of recidivism would be high. The path to effectively treating your paedophilic disorder and lowering that risk is likely to be long and difficult – there are many hurdles to overcome. In my view, your prospects for rehabilitation are therefore more appropriately characterised as being ‘guarded’.
On 1 February 2018, Parliament introduced the standard sentence scheme. Charge 11 on Indictment A, being the offence of sexual assault of a child under the age of 16, is a standard sentence offence where the standard sentence prescribed is four years’ imprisonment.
Charge 1 on Indictment C, being the offence of sexual penetration of a child under the age of 12, is also a standard sentence offence. The standard sentence prescribed for that provision is 10 years’ imprisonment.
For both of those charges, I am required to take the standard sentence into account as one of the factors relevant to the formulation of sentence. I am also obliged, in stating my reasons for imposing sentence, to refer to the standard sentence and explain how the sentence imposed relates to that standard sentence.
The sentence I intend to pass in respect of Charge 11 on Indictment A, and Charge 1 on Indictment C, will be lower than the standard sentences prescribed for each of those offences. In reaching that conclusion, I have considered all of the matters under s 5(2) of the Act, the prescribed standard sentence, your pleas of guilty, your intellectual impairment, your deprived background and all of the other mitigating factors which apply to you and to your offending.
In carrying out these offences, you knew you were required to report your contact with children to the relevant authorities. You must be sentenced on the basis that you well understood that obligation despite your disability. In my view, your failure to report the contact you had with the victims aggravates the offending comprising Indictments A and C. However, to ensure that you are not punished twice, the sentences to be imposed for the offences comprising Indictment B will be wholly concurrent with the sentences imposed on Indictments A and C.
Finally, pursuant to s 11A(1) and (4) of the Act, in fixing a non-parole period in respect of a total effective sentence for two or more sentences where one of those sentences is for a standard sentence offence, I must fix a non-parole period of at least 60% of the head sentence, unless I consider that it is in the interests of justice not to do so.
Ms Roodenburg urged that it was in the interests of justice to fix a lower than usual non-parole period, i.e. lower than 60%, essentially to facilitate your rehabilitation through lengthy supervision in the community. I cannot accept that submission. In my view, the seriousness of this offending is such that the minimum term that justice requires you to serve, before being eligible for release back into the community, must be greater than 60% of the total effective head sentence.
Taking all relevant matters into account you will be sentenced as follows:
Indictment J10816252A.1 (Indictment A)
On Charge 1, indecent act with a child under the age of 16 (touching of Brodie Weston’s penis) between 1 April 2017 and 17 April 2017, you are convicted and sentenced to 2 years’ imprisonment.
On Charge 2, sexual penetration of a child under the age of 16 (child under 12) (causing Brodie Weston to introduce his penis into your mouth) between 1 April 2017 and 17 April 2017, you are convicted and sentenced to 6 years’ imprisonment.
On Charge 3, attempted sexual penetration of a child under the age of 16 (attempting to cause Jake Weston to introduce his penis into your mouth) between 1 April 2017 and 17 April 2017, you are convicted and sentenced to 4 years’ imprisonment.
On Charge 4, production of child pornography (photograph depicting the genital region of Brodie Weston) between 1 April 2017 and 17 April 2017, you are convicted and sentenced to 4 months’ imprisonment.
On Charge 5, production of child pornography (photograph depicting the genital region of Jake Weston) between 1 April 2017 and 17 April 2017, you are convicted and sentenced to 4 months’ imprisonment.
On Charge 6, sexual assault of a child under the age of 16 (sexually touching Brodie Weston behind the toilet block) between 7 January 2018 and 12 January 2018, you are convicted and sentenced to 2 years’ imprisonment.
On Charge 7, sexual assault of a child under the age of 16 (sexually touching Jake Weston behind the toilet block) between 7 January 2018 and 12 January 2018, you are convicted and sentenced to 2 years’ imprisonment.
On Charge 8, indecent act with a child under the age of 16 (touching Jake Weston’s penis), between 1 April 2017 and 17 April 2017, you are convicted and sentenced to 2 years’ imprisonment.
On Charge 9, producing child abuse material (six images of David Portelli naked with penis exposed) between 1 December 2017 and 26 March 2018, you are convicted and sentenced to 18 months’ imprisonment.
On Charge 10, producing child abuse material (15 images of child abuse material of Lee Forrest) between 1 December 2017 and 12 March 2018, you are convicted and sentenced to 6 months’ imprisonment.
On Charge 11, sexual assault of a child under the age of 16 (rolled-up charge of touching Lee Forrest’s penis, causing Lee Forrest to touch your penis and causing your penis to touch Lee Forrest’s penis) between 9 March 2018 and 12 March 2018, you are convicted and sentenced to 3 years and 6 months’ imprisonment.
On Charge 12, producing child abuse material (photograph of Taylor Forrest with his penis exposed) between 1 December 2017 and 12 March 2018, you are convicted and sentenced to 4 months’ imprisonment.
On Charge 13, possession of child abuse material (knowingly possessing child abuse material on 15 electronic devices) on 27 March 2018, you are convicted and sentenced to 18 months’ imprisonment.
I will order that:
- 3 months of the sentence imposed on Charge 1,
- 6 months of the sentence imposed on Charge 3,
- 1 month of the sentence imposed on Charge 4,
- 1 month of the sentence imposed on Charge 5,
- 4 months of the sentence imposed on Charge 6,
- 4 months of the sentence imposed on Charge 7,
- 4 months of the sentence imposed on Charge 8,
- 6 months of the sentence imposed on Charge 9,
- 1 month of the sentence imposed on Charge 10,
- 6 months of the sentence imposed on Charge 11,
- 1 month of the sentence imposed on Charge 12, and
- 3 months of the sentence imposed on Charge 13,
be served cumulatively upon the sentence imposed on Charge 2, rendering a total sentence of 9 years and 4 months’ imprisonment on Indictment A.
Indictment J10816252.B (Indictment B)
Charge 1, failing to comply with reporting conditions under SORA (having contact with Brodie Weston and Jake Weston without reporting that contact to the Chief Commissioner of police) between 1 April 2017 and 17 April 2017, you are convicted and sentenced to 4 months imprisonment.
Charge 2, failing to comply with reporting conditions under SORA (having contact with Brodie Weston and Jake Weston without reporting that contact to the Chief Commissioner of police) between 23 September 2017 and 8 October 2017, you are convicted and sentenced to 4 months imprisonment.
Charge 3, failing to comply with reporting conditions under SORA (having contact with David Portelli without reporting that contact to the Chief Commissioner of police) between 1 December 2017 and 31 December 2017, you are convicted and sentenced to 4 months imprisonment.
Charge 4, failing to comply with reporting conditions under SORA (having contact with Sarah Jenson[34], Matthew Jenson[35], Taylor Forrest, Lee Forrest, Stewart Forrest[36], Jessica Forrest[37] and John Forrest[38] without reporting that contact to the Chief Commissioner of police) between 1 December 2017 and 31 December 2017, you are convicted and sentenced to 4 months imprisonment.
[34] A pseudonym.
[35] A pseudonym.
[36] A pseudonym.
[37] A pseudonym.
[38] A pseudonym.
Charge 5, failing to comply with reporting conditions under SORA (having contact with Brodie Weston and Jake Weston without reporting that contact to the Chief Commissioner of police) between 7 January 2018 and 12 January 2018, you are convicted and sentenced to 4 months imprisonment.
Charge 6, failing to comply with reporting conditions under SORA (having contact with David Portelli without reporting that contact to the Chief Commissioner of police) between 1 January 2018 and 26 March 2018, you are convicted and sentenced to 4 months imprisonment.
Charge 7, failing to comply with reporting conditions under SORA (having contact with Sarah Jenson, Matthew Jenson, Taylor Forrest, Lee Forrest, Stewart Forrest, Jessica Forrest and John Forrest without reporting that contact to the Chief Commissioner of police) between 1 February 2018 and 28 February 2018, you are convicted and sentenced to 4 months imprisonment.
Charge 8, failing to comply with reporting conditions under SORA (having contact with Sarah Jenson, Matthew Jenson, Taylor Forrest, Lee Forrest, Stewart Forrest, Jessica Forrest and John Forrest without reporting that contact to the Chief Commissioner of police) between 9 March 2018 and 12 March 2018, you are convicted and sentenced to 4 months’ imprisonment.
I will order that sentences imposed on Charge 1, Charge 3 and Charge 4 be served cumulatively upon each other and upon the sentences imposed on Charges 2, 5, 6, 7 and 8. All other sentences are to run concurrently rendering a total sentence of 12 months’ imprisonment on Indictment B.
Indictment number K11129906.2 (Indictment C)
On Charge 1, sexual penetration of a child under 12 years of age (causing Lee Forrest to introduce his penis into your mouth) between 9 March 2018 and 12 March 2018, you are convicted and sentenced to 7 years and 6 months’ imprisonment.
Accordingly, the total sentence imposed on Indictment C is 7 years and 6 months’ imprisonment.
I will further order that 2 years of the sentence imposed on Indictment C is to be served cumulatively upon the sentence imposed on Indictment A. I will further order that the 12 months sentence imposed on Indictment B is to be wholly concurrent with the sentences imposed on Indictments A and C.
The total effective sentence therefore imposed is 11 years and 4 months’ imprisonment.
I will fix a non-parole period of 8 years.
I will declare pursuant to s 18 of the Sentencing Act 1991 (‘the Act’) that you have already served 806 days of that sentence by way of pre-sentence detention. I will cause that declaration to be noted in the records of the Court.
I will also declare pursuant to s 6AAA of the Act, that but for your plea of guilty, you would have been sentenced to a total effective sentence of 14 years and 4 months’ imprisonment with a non-parole period of 11 years. I will cause that declaration to be noted in the records of the Court.
I will further declare pursuant to s 6F(1) of the Act, that you have been sentenced as a Serious Sexual Offender in respect of Charges 2 – 13 inclusive on Indictment A and Charge 1 on Indictment C. I will also cause that declaration to be noted in the records of the Court.
I will further order that you be required to comply with the reporting obligations under the SORA. The length of the reporting period is life.
The disposal order is granted in the terms sought by consent.
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