Director of Public Prosecutions v Qadir (a pseudonym)
[2022] VCC 1459
•19 August 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication | |
AT Melbourne
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AZIZ QADIR (A Pseudonym) |
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JUDGE: | HIS HONOUR JUDGE MURPHY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 May 2022 – 6 June 2022, 16 August 2022 | |
DATE OF SENTENCE: | 19 August 2022 | |
CASE MAY BE CITED AS: | DPP v Qadir (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1459 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms C. Duckett | Office of Public Prosecutions |
| For the Accused | Mr S. Kenny | Stary Norton Halphen |
HIS HONOUR:
1Mr AZIZ QADIR[1] after a 10 day trial on 6 June 2022 you were found guilty of seven counts of indecent act with a child under 16, maximum penalty
10 years' imprisonment, three counts of incest, maximum penalty of25 years' imprisonment, one count of attempted incest, maximum penalty 20 years' imprisonment, one count of causing injury intentionally, maximum penalty 10 years' imprisonment, and two counts of common assault, maximum penalty five years' imprisonment.[1] A pseudonym.
2The offending was against two complainants, and was alleged to have occurred between 1 June 1998 and 31 December 2002 at the time when you were married to the complainant's mother and were thus their stepfather. You were found guilty of three charges of indecent act with the second complainant. The balance of the guilty findings were in relation to
the first complainant.3You had faced a trial where the prosecution relied on offending occurring over 10 incidents involving the First Complainant, and three incidents involving the Second Complainant. A charge involving the eighth incident against the First Complainant was withdrawn. You thus must be sentenced on the basis of charges arising out of 12 separate incidents. You must be sentenced consistently with the jury verdicts.
Circumstances of the offending
4You were aged between 45 and 50 years during the offending period. You were born in the Middle East but subsequently moved to Europe where you married and had two children then divorced. You relocated to the Middle East and met your second wife, and lived in various Middle Eastern countries and then for several years in Europe, and had one son of that marriage. You and your then wife and son moved to Australia in 1989 and you worked in IT for the public sector.
5The family constellation in which the offending occurred was that the mother of the complainants was born in the Middle East and moved to Australia with her then husband in the late 1980s. She had three children, the First Complainant born, and the Second Complainant, who had a twin brother. The twins were born in Australia
6She was separated from her husband and the family lived in a
Ministry of Housing flat. You were living in a suburb of Melbourne. You met the complainant's mother and the children at a mosque where you were teaching Arabic to the First Complainant. At that time you had been engaged in a bitter custody dispute with your former wife over your son.7You formed a relationship with the mother of the complainants and at some time entered an Islamic marriage with her. You began staying at the flat overnight, as did your son from time to time, and at some stage subsequently you leased a house in a suburb of Melbourne and the mother of the complainants and her three children moved into that property with you. Around this time the mother of the complainants gave birth to your son.
8All the offending occurred at the house in the suburbs of Melbourne.
Details of the offending and the wider evidence elicited
9In its case, the prosecution relied on the evidence of the complainants, their brother, their mother, and complaint evidence from the school at which the
First Complainant was attending, some school friends, and from the family general practitioner.10During the trial there was a significant volume of evidence elicited to place the charged offences in their full context. That context included evidence from the First Complainant that you had engaged in violence against her on occasions other than the charged occasions, and that on occasions other than the charged occasions you had engaged in sexual activity with her.
11The prosecution relied on this wider evidence and the evidence as to the charged occasions as also showing that you had a sexual interest in your stepdaughters and a willingness to act on that interest, and also to use physical violence as a form of discipline and punishment.
Offending against the First Complainant
Charge 1, indecent act with a child under 16
12The complainant was aged 13 when this event occurred. The family was about to go out and she chose that she did not wish to wear a headscarf on that occasion. You told her that she was not going to leave. The family were in the car and you pulled her back into the house and told her that she was not leaving the house. You told her to put a scarf on and that she will do what she is told. She refused.
13You pushed her to the floor and got on top of her and started to grope her over her jumper. You slipped your hand underneath her jumper over her bra and were cupping her left breast. You removed your hand and told the complainant that she will not be going on the outing. The complainant reported the event to her mother who refused to accept her account.
14The complainant subsequently reported the matter to the school that she was attending, as well as to some school friends. You were spoken to by the headmaster. You told him that the First Complainant was rebellious and that you thought she was lying. You subsequently changed your behaviour towards the complainant. Previously you had been quite authoritative but you became much nicer.
15As a result of the complaint to the school, and also a complaint by the family general practitioner who suspected that there might be a sexual relationship between you and the First Complainant, the Department of Human Services became involved. They attended at the house later in the year but you declined their entry. The records of the Department supported the complainant's account, however she gave evidence that things were improving and she didn't feel comfortable disclosing anything to them at that stage. The file was later closed.
Charge 2, indecent act with a child under 16
16After the first event you started to befriend the First Complainant, hugging her giving her a kiss and asking her to sit on your lap. She did not know what to make of it. Later you began to give her wet kisses and tell her that you loved her and wanted to marry her. She reported that to her mother.
17Charge 2 occurred on a night with when the mother of the complainants was away giving birth to your son. The First Complainant was on the lower bunk of a bed with the Second Complainant asleep in the bunk above. You entered the room dressed, slipped into the First Complainant’s bed, got on top of her and started to kiss her and touch her breasts. You were on top of her rubbing up on her and she believed she felt an erection.
18The complainant gave evidence that similar behaviour happened a few times, when the mother of the complainants was in bed.
Charge 3, incest
19Around the time of the First Complainant’s 14th birthday she gave evidence that the same thing happened as in Charge 2 where you entered her bed, under the covers, lifted her nightie pulled down her underwear and proceeded to have intercourse with her. She was a virgin and it was painful. She did not say anything. You withdrew before ejaculating. You pulled up your pants and left the room.
Charge 6 indecent act with a child under 16 and Charge 7 incest
20On the First Complainant's account you and her started to develop a relationship where sex was happening quite frequently. It occurred when the mother of the complainants was not in the house for example when she was out shopping taking the other siblings.
21On one of these occasions she was in her room. You came into her room and started to kiss her and suggested sex. She said that she had had her period. You smiled and said to her that, 'That's great this is probably the best time to have sex because you could ejaculate inside her and she wouldn't get pregnant.' You then went away, got a towel, came back and took her clothes off and told her to lie on the bed.
22You then proceeded to have intercourse with her and to ejaculate inside her.
Charge 4, attempted incest, Charge 5 indecent act with a child under 16
23This offending occurred when the mother of the complainants was not in the house such as when she had taken the siblings shopping. You were using sex as a form of punishment and you had become a lot more aggressive. The complainant was also becoming more willing to talk back at you. On one occasion when in the afternoon she was reading a book, you came into her room and said something like, 'Now it's time for your punishment'.
24You tackled her to the ground and sat her on your stomach. You moved up and tried to put your penis in her mouth. She had her mouth closed but you continued shoving your penis into her face until you ejaculated on her face. You then got up and left.
25The complainant gave evidence of another similar event, not the subject of a charge, where she ran her mouth over your penis and you ultimately ejaculated over your thigh and pelvis.
Charge 8, incest
26This charge relates to the First Complainant, when the complainant gave evidence that your son with the mother of the complainants was very young. The First Complainant was looking after him and sleeping with him on her mother's bed while her mother was away. You came into the room, naked from the waist down, came on top of her, started to initiate sex, took off her pants and commenced intercourse with her. You then turned her over and entered her from behind and withdrew before ejaculating over her anus.
Charge 9, causing injury intentionally to the First Complainant
27Turning now to the assault charges involving the First Complainant. The complainant gave evidence that relationships between her and you became strained and she was arguing back at you. On one occasion the two of you were in the living room when you said something about her weight that purported to be a joke. She responded and told you that you were weird. She got up to walk away and you got up behind her, pulled her hair then came around in front of her and punched her in the eye, slapped her around the face and punched her around the mouth.
28The mother of the complainant took photos of the results of this assault being a swollen eye and a fat lip. The First Complainant’s brother gave evidence supporting the account. The complainant was taken to a doctor other than her usual doctor. She was unsure whether she could not go to school because of the bruised eye and whether at the time she was being home-schooled.
Charges 12 and 13, common assault
29The First Complainant had entered your room in order to retrieve an item. You came into the room and asked her what she was doing. She explained and you told her to leave but she refused and said she wanted to retrieve the item. You then pulled her by the hair, dragged her out into the living room. She resisted as she wanted to retrieve the item. You tackled her to the ground, got on top of her, pinned her arms down and started to strangle her with both hands. She felt that she was about to pass out, and you would let her go and resume. You did this two or three times with a menacing smile on your face.
30Charge 13 relates to event where you had placed a lock on the bathroom door as you wanted to control when the children showered. The First Complainant was seeking to unscrew the hinges of the door. Again, you dragged her by the hair and pulled her away to get away from the door. She struggled a bit and you put your arm around her neck in a headlock. You started to press really hard where she thought she was going to faint, when she stopped resisting you let go. The Complainant’s brother gave evidence corresponding to the account by the First Complainant.
Offending against the Second Complainant
31The Second Complainant gave evidence as to her relationship with you. It was to the effect that she was not in a position to talk back to you. She said she was not in a position to question any of your directions, 'When you ask why, you get punched in the face.' She gave evidence that she was scared of you.
Charge 14, indecent act with a child under 16
32When the Second Complainant was aged 13, the mother of the complainants along with the First Complainant and the Second Complainant’s brother travelled to the Middle East leaving you in Melbourne with the Second Complainant then aged 13 along with your son with the mother of the complainants, then aged three.
33She was watching TV in the living room when you came in and gave her a chocolate, which was unusual. Later that night she was in bed. You had directed her to sleep in her mother's bed. She was not in a position to refuse. She woke up and found you in bed with her holding her from behind with your hands all over her, under the clothes. You were touching her breasts, and all over her vagina area. This continued for what seemed longer than five minutes. She shifted position and you left. She did not say anything to you as if she had done so you would be violent.
34On other occasions you entered her bedroom and did the same thing. She started to wear a belt so it would be difficult for you to touch her.
Charge 15, indecent act with the child under 16
35On this occasion the Second Complainant felt that she was in trouble with you. She was unable to remember whether she was crying but you picked her up while she was crying and screaming. She was resisting and kicked the bathroom door which hit her younger brother in the face. You threw her onto her mother’s bed and then again proceeded to put your hands all over her chest, breasts, and vagina area. She was screaming and crying. You were being very rough, particularly with her vagina with your fingers digging in, and she felt she was being punished.
36The event continued for about 15 minutes and the complainant believes that it was the crying of the younger brother that led you to desist.
Charge 16, indecent act with a child under 16
37On another occasion you told the Second Complainant to go into her room and take her clothes off and wait for you. She went into her room but did not take her clothes off. A few minutes later you asked why she had not done so. You then pinched her neck and got on the bed and told her to give you a massage. You were only wearing pants. She was sitting over your stomach. You positioned her backwards onto your groin and grabbed her hands and move them over your nipples and chest and made her rub you. She could feel your erect penis. This continued for a while.
38After this event the Second Complainant contacted her mother by telephone and told her what had occurred. Soon after the complainant’s mother returned to Australia. She and the children moved back to the flat after their return.
39The Second Complainant posted a blog post when she was aged 22 stating that she had been the victim of sexual abuse by you but that she had been told by her mother not to raise the matter.
40Eventually in May 2018 the First Complainant went to the police and in August 2018 made a formal statement. The Second Complainant made a statement at the same time and in January 2019 the mother of the complainants made a statement. You were formally interviewed by the police on 4 October 2019 and in the record of interview when the allegations were put you strongly denied all the allegations.
41You were charged in October 2019 and granted bail. The matter was the subject of a committal on 11th and 12 January 2021. The matter was then listed for trial which commenced on 24 May 2022. You did not give evidence at the trial. The jury must be taken to have rejected your denials in the record of interview, and rejected the motives to lie in the cross-examination and accepted the evidence of the complainants, supported as it was by powerful complaint evidence.
Victim impact statements
42Both complainant's and the mother of the complainants provided victim impact statements.
43The impact of your offending on each of the complainant's was clear from their demeanour when giving evidence. In addition in her VIS, the First Complainant refers to severe psychological scars and a diagnosis of PTSD necessitating expensive psychological consultations. She has continued to be traumatised by your offending and gets depressed and is in a heightened state of anxiety.
44She does not have any happy memories of her childhood and it impacts on her relationships including with her husband. She does not trust anybody, has difficulty socialising and in her work. She is worried about the safety of her family and concludes by saying that she wishes, 'she could switch off the memories and wonder what life would be like if she didn't have this trauma.'
45The Second Complainant provides a similar account of the impact of your offending on her. She sustained an eating disorder which impacted on her school performance. She fell into substance misuse and was required to have counselling. She is very unsettled and has anger management issues as well as relationship problems. She gets triggered by various events and has difficulty in romantic relationships and has complex PTSD. Your offending has had a major physical impact on her. She attributes physical conditions to your offending which affects her work and her moods and her ability to engage with family friends and her partner.
46She has also been financially impacted as she had difficulty at school and since then it has affected her self-confidence and career progress. She has incurred significant costs in seeking to address the sequalae of your conduct.
47In the course of the trial (Exhibit E) a blog post authored by the Second Complainant was admitted testifying to the shame and impact on her of your offending and her inability for cultural reasons to bring it to the attention of the police at that point.
48The mother of the complainants also filed a victim impact statement. She is now aged in her 60’s and indicates that your offending has had a negative emotional impact on her. She feels hurt inside and cries a lot and does not socialise. She has lost a sense of security. She feels she is psychologically and mentally destroyed. She feels blamed by the children for the impact of your offending on them. She gave evidence as to the cultural implications of reporting your conduct.
49On the plea the learned prosecutor also referred to the impact of your offending on the Second Complainant’s twin, although he has not filed a VIS. He gave evidence supporting the evidence of the First Complainant. He also gave evidence of an observation in the First Complainants bedroom supporting a sexual relationship between you and the First Complainant. His evidence also supported physical violence between you and the First Complainant, including his observation of the injury giving rise to Charge 9. He also gave evidence of the phone call from the Second Complainant to her mother in the Middle East and the impact of information conveyed by the Second Complainant on her mother.
50Thus while he did not file a VIS I am satisfied that your offending would have had an impact on him given that he was the same age as the Second Complainant, and a few years younger than the First Complainant when the offending occurred.
51Overall, on the basis of this material I am satisfied that your offending has had a very significant impact on the two complainants and thus must be taken into account in assessing the overall seriousness of the offences of which you have been convicted.
Assessing the seriousness of the offending
52Sexual offending by parents against children is inherently serious, involving as it does a breach of trust and of the parental duty of protection. There is a presumption of harm. Children are not in a position to consent to any sexual activity. Often this offending has a lifetime impact on children. Here the offending has had a very significant impact on the two complainants, as set out in their VIS's.
53The crime of incest carries a maximum penalty of 25 years' imprisonment and is abhorrent. Here, in relation to the First Complainant, she was on the cusp of puberty when you committed these offences against her. The offending in relation to Charge 3 occurred after you had engaged in conduct where you sought to ingratiate yourself with her in the period after she had complained to her mother and the school about your conduct on the occasion in Charge 1 where she refused to wear a headscarf. Your offending there was gratuitous sexual violence against your 13-year-old step daughter.
54When she reported the matter to her mother she was not heard, and when she took the matter up with the school who took the matter up with the DHS. You refused to engage or acknowledge any conduct. You were thus on notice as to the unacceptability of your conduct.
55In the period subsequent to that first sexual assault, your conduct in relation to Charges 3, 7, and 8 and the charge of attempted incest in Charge 4 was very serious. The First Complainant was a virgin and gave evidence that the offending occurred with when she was aged 14.
56Subsequent to Charge 3 she gave evidence of 'frequent' sex. You are not to be sentenced for that however it is relevant to your moral culpability. The sex was unprotected. Your conduct escalated from the conduct in
Charges 1 and 2. Your conduct in relation to Charges 6 and 7 was degrading as she was having her period. In addition your conduct in relation to Charge 4 and 5 of seeking to forcefully engage in oral penetration, and then of ejaculating on her face was also grossly degrading and humiliating.57Your sexual offending must be also considered in the context that following a discussion with the First Complainant, the complainants’ mother raised with you that the First Complainant had told her that you wanted to divorce the mother and marry the First Complainant. She had raised this matter with you but you refused to talk about it. You were therefore fully on notice from your then wife that your conduct with the First Complainant was totally inappropriate.
58You bear high moral culpability for all the sexual offending.
59The sexual offending must also be considered in the context of the evidence of the First Complainant in relation to your violence against her which was evidenced in Charge 1 and in the assaults the subject of Charges 9 and 12 and 13. Again, the evidence of the First Complainant, Second Complainant and Second Complainant’s twin as to the violent atmosphere within the household is relevant to your moral culpability for Charges 9 and Charges 12–13.
60Overall, your offending against the First Complainant was a gross breach of your parental obligations and a breach of trust.
61Similar principles apply in relation to your offending against the Second Complainant. You knew that sexual conduct against children was totally inappropriate. The Second Complainant was aware of your offending against her older sister. She was left in your care by her mother and you violated that trust. Your conduct has had a significant and continuing impact on the Second Complainant which must be given effect to in the sentence.
Subjective matters
62In a comprehensive plea your counsel raised a number of subjective matters that are relevant to sentence and must be considered in your favour.
63You are aged 69 and have no prior convictions. Your personal background was set out in the defence sentencing submissions and also in the report of
Mr Candlish, Psychologist which I incorporate by reference.64As I have noted, since you have been in Australia you worked in IT in the public sector. You were brought up in a middle-class family in the Middle East. You left there when aged 18 and went to Europe where you attended university. As I have noted you subsequently remarried and then arrived in Australia in 1989.
65Further, you have been closely involved in the local mosque and it was in the context of your involvement in teaching Arabic that you first met the mother of the complainants and the complainants. A member of that community attended to support you on the plea.
66On the plea your counsel relied on the report of Mr Candlish which indicates that you have suffered mental health issues over the years and you have been prescribed antidepressant medication since about 1995 which you take on and off. You were considered to have anxiety and depression in 2016 and 2018 and you have attended sessions with a psychologist. You have had very difficult issues adjusting to your present environment since you were remanded.
67The report notes that you developed rigid views related to your religion, and a strong sense of entitlement and a possible sense of superiority compared to others.
'He appears to have held views that he was entitled to exert control over his partners and their children. He appears likely to have held views that girls are unharmed by sexual activity with adult men and are able to consent.'
68He notes that you felt entitled to engage in the sexual acts and assume that your behaviour would not be detected.
69The psychologist is of the view that your advanced age, cultural and religious beliefs as well as your character issues are likely to impact on your ability to adapt in prison and your depressive disorder is likely to worsen in the event of a sustained period of incarceration. He notes that you have benefited from psychological treatment in the past. In relation to your risk of recidivism he is of the view that you are of low risk, particularly given your age. Further, active intervention may be counterproductive.
70The learned prosecutor however, disputed that you are of low risk. She noted that you continue to deny the offending and relies on the opinion that you felt entitled to engage in the conduct you did. On that basis she submitted that your prospects of rehabilitation should be regarded as uncertain.
71I would assess your prospects of rehabilitation as fair. Your advancing age is a factor; however, you continue to deny the offending and the characterological factors referred to in the report of Mr Candlish are deeply entrenched and are unlikely to abate notwithstanding your advancing age.
72I accept in your favour that given your age; imprisonment will be more burdensome than for a younger person. The prosecution accepted that some allowance should be made for your age. Any sentence should not be crushing.
73Similarly, your depressive condition will also make imprisonment more burdensome although the authorities have a duty to provide you with appropriate treatment.
74You get credit for your prior good character, and the lack of offending after the family left the premises where the offending took place. You have also had this matter hanging over your head since you were charged in October 2019 with these offences. These are all factors that call for some mitigation on sentence.
75Also you are commencing a term of imprisonment in the COVID environment. The pandemic continues to affect the operation of the prison system. The duration of this disruption remains uncertain but I take into account that you will need to serve the sentence until the pandemic moves on.
Sentencing submissions
76Both counsel accepted that there was no dispute that this was serious offending. Your counsel referred to the case of Reid (a pseudonym) v The Queen [2014] VSCA 145 whereupon an analysis of the various factors referred to he submitted that the offending should be regarded as in the middle of the range.
77The learned prosecutor disputed this assessment and submitted that the offending here was in the upper range of seriousness. She particularly referred to the associated violence and to the fact that this offending occurred in the context of a background of family violence, the ages of the two complainants, and the duration of the offending.
78The offending here, considered as a whole, is properly characterised as in the upper range of seriousness. The offending occurred in brazen circumstances and your offending escalated from the first event. The First Complainant was aged 14 at the time of the acts of incest and attempted incest.
79As I have indicated that in relation to the acts of intercourse in Charge 7 and the events in Charges 4 and 5 this was degrading conduct. The intercourse was unprotected. The complainants were vulnerable. Their mother was a single mother until entering the relationship with you. The actual charged offences were part of a context that involved other conduct which goes to increase your culpability. Also you had been told by the mother that any relationship with the First Complainant was inappropriate.
Comparable cases
80Your counsel referred the court to the sentencing snapshot in relation to incest. I do not regard this as of any great assistance given that it spans the decisions of DPP v Dalgliesh (a pseudonym) [2016] VSCA 148, Director of Public Prosecutions v Dalgleish [2017] HCA 41 and DPP v Dalgleish (a pseudonym) [2017] VSCA 2017 which indicated that there needed to be a significant uplift in sentences for these types of crimes.
81The learned prosecutor referred the court to the cases of DPP v Polat (a pseudonym) [2020] VSCA 174, Harlow (a pseudonym) v The Queen [2018] VSCA 234 and DPP v Howard (a pseudonym) [2021] VSCA 298 as providing some evidence of current sentencing practices. As this type of offending occurs in a wide variety of circumstances, any particular sentence does not constitute a precedent. However the sentences considered in those cases are relevant as providing a guidepost along with the maximum penalty in imposing sentence.
Purposes of sentencing
82The basic purposes for which a court may impose a sentence are punishment, deterrence both specific and general, rehabilitation, denunciation and protection of the community. In sentencing I must have regard to a range of factors such as the seriousness of the offences, your culpability for them, your personal circumstances and those of the victims. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society.
83In her sentencing submission the learned prosecutor extracted from the leading cases the relevant principles for sentencing of offences of family violence and the crime of incest. I incorporate by reference the extracts set out in paragraphs 15–18 of her submission in relation to the crime of incest, and paragraphs 19 and 20 relating to offences involving family violence and the importance of general deterrence. The authorities confirm that considerations of general deterrence and denunciation loom very large, particularly since the case of Dalgliesh. Specific deterrence and protection of the community are also relevant here.
84In the case of DPP v G [2002] VSCA 6, President Winneke said at [9],
'This court has, in recent years, had cause to remark on the prevalence of the crime of incest in the community, its capacity to erode decency of family life and the trust and confidence of its young victims. It is a crime which obliges the court to punish it with principles of general deterrence, denunciation and protection of young persons at the forefront of sentencing purposes. The insidious effects of the crime of incest upon its victims should be recognised by those who are privileged to exercise parental care and the community is entitled to expect that those who exercise such care, will not abuse the trust and confidence reposed in them by those in their charge. Parents
- and those in loco parentis - who fail to exercise the restraint which the community expects of them, and who give in to their own sexual gratification, must expect to be severely and appropriately punished.'
85The cases referred to by the learned prosecutor emphasise the seriousness of the offence of incest and the need for sentences that reflect community abhorrence of this conduct.
86Along with the considerations set out in the extracts referred to by the learned prosecutor in this type of case I regard it is appropriate to refer to the concept of social rehabilitation which was addressed by Vincent JA, in the case of Director of Public Prosecutions v DJK [2003] VSCA 109 - , where he said this at [18]:
'This notion of social rehabilitation is one which I do not believe
has been accorded anything approaching significant recognition as an identifiable underlying concern of the criminal justice system. It seems to me that the process of social and personal recovery which we attempt to achieve in order to ameliorate the consequences of a crime can be impeded or facilitated by the response of the courts. The imposition of a sentence often constitutes both a practical and ritual completion of a protracted painful period.''It signifies the recognition by society of the nature and significance of the wrong that has been done to affected members, the assertion of its values and the public attribution of responsibility for that wrongdoing to the perpetrator. If the balancing of values and considerations represented by the sentence which, of course, must include those factors which militate in favour of mitigation of penalty, is capable of being perceived by a reasonably objective member of society as just, the process of recovery is more likely to be assisted. If not, there will almost certainly be created a sense of injustice in the community generally that damages the respect in which our criminal justice system is held and which may never be removed.'
'Indeed, from the victim's perspective, an apparent failure of the system to recognise the real significance of what has occurred in the life of that person as a consequence of the commission of the crime may well aggravate the situation.'
87The concept was further addressed by Vincent JA in the case of Director of Public Prosecutions v Toomey [2006] VSCA 90 - , where he said this at [22]:
'It is well to bear in mind that rehabilitation of the victim of
sexual abuse may often be more difficult to achieve than that of the perpetrator. Frequently, the damage will be profound and a long time will pass before it can be addressed at all. In the meantime, childhood will be destroyed, self-esteem damaged, educational and career opportunities lost, and the capacity to form and maintain relationships seriously impaired. The notion to which I have averted underpins, I believe, such concepts as restorative justice, just punishment, the vindication of rights and the attribution of responsibility based on moral culpability. The vindication of the victim in cases of this kind in particular is profoundly important if the criminal justice system is to perform its role properly. '
88These comments are applicable in this case.
89Under the relevant provisions relating to serious sexual offenders, following convictions and sentences of imprisonment for Charges 1 and 2, in sentencing you for Charges 3–8 and 14–16 the court is required to consider protection of the community as the primary sentencing purpose.
90The prosecution does not seek a disproportionate sentence. Further, in sentencing you as a serious sexual offender on those counts, there is a presumption of cumulation and this modifies to an extent the principle of totality. The degree of cumulation should increase with the seriousness of the overall offending, and recognise the separate criminality of each offence, and of the two complainants. Cumulation is less applicable in relation to offences closely connected in time or as a single transaction. This is relevant in relation to Charges 6 and 7.
91In submission your counsel referred to the principle of parsimony and to the statement that the severity of a term of imprisonment is an exponential rather than a linear function. In considering the overall sentence, and applying the serious sex offender provisions I have had regard to those principles.
92Your counsel sought a longer than usual period during which you would be eligible for parole. There is no 'usual' non-parole period. A non-parole period should reflect the period that an offender is required to serve in custody that gives effect to all sentencing purposes. Here, given your refusal to acknowledge your offending and the characterological matters raised in the report of Mr Candlish, and your fair prospects of rehabilitation, I do not regard it as appropriate to provide for a longer than usual period of parole eligibility.
93I have considered all the matters put on your behalf. At the end of the day this was serious offending against two children to whom you owed a parental responsibility. Your conduct was absolutely abhorrent and the sentence of the court has to denounce your conduct, punish you and send a signal to all those with parental responsibility that sexual offending against those to whom parental duties are owed is rightly regarded as odious and calling for very significant punishment.
94As a consequence of your conviction for serious sexual offences, you are required to go on the Sex Offender Register. The reporting period is for life. The relevant paperwork will be sent to the prison.
95Could you please stand.
96The sentence of the court is as follows.
The offending against the First Complainant
97On Charge 1, indecent act with a child under 16, four months' imprisonment.
98Charge 2, indecent act with a child under 16, two years' imprisonment.
99Charge 3, incest, eight years' imprisonment.
100Charge 4, attempted incest, six years' imprisonment.
101Charge 5, indecent act with a child under 16, three years' imprisonment.
102Charge 6, indecent act with a child under 16, two years' imprisonment.
103Charge 7, incest eight years' imprisonment.
104Charge 8, incest eight years' imprisonment.
105Charge 9, causing injury intentionally, two years' imprisonment.
106Charge 12, common assault, one year imprisonment.
107Charge 13, common assault, one year imprisonment.
The offending against the Second Complainant
108Charge 14, indecent act with a child under 16, three years' imprisonment.
109Charge 15, indecent act with a child under 16, three and a half years' imprisonment.
110Charge 16, indecent act with a child under 16, two years' imprisonment.
The cumulation of the sentences
111The sentence on Charge 3 will be eight years. I order that one year of the sentence on Charge 4, five months of the sentence on Charge 5, three months of the sentence on Charge 6, one year of the sentence on
Charge 7, 15 months of the sentence on Charge 8, six months of the sentence on Charge 9, 12 months of the sentence on Charge 14, 15 months of the sentence on Charge 15, and 12 months of the sentence on
Charge 16 be served cumulatively on each other and on the sentence on Charge 3, making a total effective sentence of 15 years and eight months' imprisonment. I order that you serve 11 years' imprisonment before being eligible for parole.112Sorry, I make a correction on the sentence on Charge 16, it is three years' imprisonment.
113So, the head sentence is 15 years and eight months' imprisonment. I declare serve a non-parole period of 11 years.
114I declare that you have served 74 days, is that the figure, 74 days pre-sentence detention. I declare that you have been sentenced as a serious sexual offender on Charges 3, 4, 5, 6, 7, 8, 14, 15 and 16 and order that it be entered in the records.
115As a consequence of the offending, you are required to go on the
Sex Offender Register for life and the paperwork will be sent to the prison.116I want to thank both counsel for their assistance in the sentence and in the trial. Adjourn the court sine die.
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