Director of Public Prosecutions v Quinlan (a pseudonym)
[2023] VCC 2226
•30 November 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WILL QUINLAN (a pseudonym) |
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| JUDGE: | HIS HONOUR JUDGE LAURITSEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 27 October 2023 |
| DATE OF SENTENCE: | 30 November 2023 |
| CASE MAY BE CITED AS: | DPP v Quinlan (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2023] VCC 2226 |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Charges of incest, committing an indecent act with, or in the presence of, a child under 16 and a charge of possessing child abuse material – very serious offending – plea of guilty – no criminal history – sentenced as serious sex offender – totality – positive prospects of rehabilitation – extreme blameworthiness – life reporting period under the Sex Offenders Registration Act 2004
Legislation Cited: Sentencing Act 1991; Sex Offenders Registration Act 2004
Cases Cited:R v Sposito Supreme Court of Victoria, unreported, 7-8 June 1993; DPP v Tullipan [2021] VSCA 191; Gordon v R [2013] VSCA 343 and DPP v Bales [2015] VSCA 261; Bugmy v R (2013) 249 CLR 571; R v Verdins (2007) 16 VR 269; Worboyes v R [2021] VSCA 169; Boxer (a Pseudonym) v R [2021] VSCA 300; Caulfield (a Pseudonym) v The King [2023] VSCA 76; DPP v Dalgleish (a Pseudonym) (No 2) [2017] VSCA 360; Harlow (a Pseudonym) v R [2018] VSCA 234; Harmon (a Pseudonym) v R [2017] VSCA 169; DPP v Polat (a Pseudonym) [2020] VSCA 174; DPP v Tullipan (a Pseudonym) [2021] VSCA 191; Trangle (a Pseudonym) v R [2021] VSCA 210; Weir (a Pseudonym) v The King [2023] VSCA 113
Sentence: 15 years and four months imprisonment with a non-parole period of 10 years and three months imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. O'Toole | Office of Public Prosecutions |
| For the Accused | Mr D. Bracken (Plea) Mr A. Isaacs (Sentence) | Anthony Isaacs Criminal Lawyers |
HIS HONOUR:
Introduction
1Will Quinlan[1], I will sentence you to a total effective sentence is 15 years and four months' imprisonment. I will set a non-parole period of 10 years and three months' imprisonment. I will declare your 461 days of pre-sentence detention (excluding today) as time served under my sentences today.
[1] A pseudonym.
2You pleaded guilty to 10 charges of incest, 13 charges of committing an indecent act with, or in the presence of, a child under 16 and a charge of possessing child abuse material.
3The circumstances of your offending are described in the document entitled 'summary of prosecution opening for plea', which is Exhibit A.
Circumstances
4Between 1992 and 2014, you were married to Carmina[2]. You and she had four children: Tamara[3] (now aged 29); Belinda[4] (now aged 27); Hazel[5] (now aged 23); and Mikala[6] (now aged 21). Each child is a complainant in this proceeding.
[2] A pseudonym.
[3] A pseudonym.
[4] A pseudonym.
[5] A pseudonym.
[6] A pseudonym.
5In 2016, you started a relationship with Elena[7]. She had a child from another relationship, Emma[8]. You and Elena also have a daughter, Phoebe[9].
[7] A pseudonym.
[8] A pseudonym.
[9] A pseudonym.
6Exhibit A describes your offending through incidents. For convenience, I will adopt that approach in these reasons.
Incident 1
7One day between 15 January 2004 and 28 January 2006, you entered Tamara’s bedroom at your home in Lismore[10]. She was lying on the top of two bunk beds. You sexually penetrated her by licking and sucking her vagina as she lay on her bed. This constitutes Charge 1, a charge of incest. Tamara was between 10 and 12, and you were between 36 and 38.
[10] A pseudonym.
Incident 2
8On another day between 15 January 2004 and 28 January 2006, also at the Lismore home, Tamara entered the master bedroom while you and your wife, Carmina, engaged in sexual intercourse. Tamara 'snuck' into the bedroom and put herself in the gap between your head and the back of Carmina’s head as you continued to penetrate Carmina. These circumstances constitute Charge 2, a charge of committing an indecent act with, or in the presence of, a child under 16.
9Meanwhile, as you continued to penetrate Carmina, you penetrated Tamara by licking her vagina. This stopped when you ejaculated into Carmina. Tamara then 'snuck' out of the bedroom. This constitutes Charge 3, a charge of incest.
Incident 3
10Between 23 October 2004 and 28 January 2006, you and your family were living at the Lismore home. On an occasion, Belinda entered the bathroom naked. You were in the bath, also naked. You touched her breasts with your hands as you sat in the bath. This constitutes Charge 4, a charge of committing an indecent act with, or in the presence of, a child under 16.
11You then took Belinda’s hand and put it on your penis. You moved her hand up and down, masturbating your penis. This constitutes Charge 5, a charge of committing an indecent act with, or in the presence of, a child under 16.
12You then ejaculated onto her bare chest as she knelt beside the bath. This constitutes Charge 6, again committing an indecent act with, or in the presence of, a child under 16. You told her to be quiet about what happened and said she was a good girl for looking after her father.
Incident 4
13Between 21 October 2004 and 28 January 2006, Belinda was between nine and 10, and you were between 37 and 38. During those dates, having Belinda masturbate you happened 'quite regularly'. It occurred in a variety of positions and once you ejaculated onto yourself. This constitutes Charge 7, committing an indecent act with, or in the presence of, a child under 16. This is the first of the course of conduct charges. The period is about 15 months, and the number of times is imprecisely captured by the words 'quite regularly'. On each occasion, Belinda felt compelled to masturbate you, not knowing or having the awareness to refuse.
Incident 5
14Between the same dates, while in the shed at the Lismore home, you showed Belinda between two and five pornographic images of young girls about Belinda’s age and asked her, 'Do you think that they are hot?' and, 'Does this turn you on?' This constitutes Charge 8, a charge of committing an indecent act with, or in the presence of, a child under 16.
Incident 6
15In January 2006, the Lismore home was sold, and the family moved to a converted shed in Avoca[11]. The family lived in the shed while you built a house on the property.
[11] A pseudonym.
16Between 29 January 2006 and 31 December 2007, Tamara was between 12 and 13, and you were between 39 and 40. Tamara was sitting on your lap while you used the computer. You showed her a pornographic video depicting adults engaging in oral sex and penile-to-vaginal intercourse. You described the sexual acts to Tamara in an instructional manner, adding 'what a woman should do' and saying the woman in the video appeared to be enjoying what she was doing. These circumstances constitute Charge 9, another charge of committing an indecent act with, or in the presence of, a child under 16.
Incident 7
17Between 29 January 2006 and 31 December 2007, Belinda was between 10 and 11. In the Avoca shed, Belinda was lying on the bottom of two bunk beds. You entered the room and lowered her pants and underwear to her feet. You then put your erect penis between her upper thighs and touching the bottom of her vagina. This constitutes Charge 10, a charge of committing an indecent act with, or in the presence of, a child under 16.
18You then moved your penis in and out of her upper thighs for about 10 minutes and used one of your hands to touch her vagina and moving this hand up and down over her vagina. This constitutes Charge 11, another charge of committing an indecent act with, or in the presence of, a child under 16.
19You then moved her shirt up and ejaculated onto her back. This constitutes Charge 12, another charge of committing an indecent act with, or in the presence of, a child under 16.
Incident 8
20During 2008, the family moved into the partly completed house on the Avoca property, leaving the shed. Tamara was then in Year 9 and aged 14. She told you she had started sexual relations with a friend. Between 25 April 2008 and 16 September 2008, after she arrived home from school, you told her she was old enough to have sex. You took her to the hobby room, placed her on all fours, lowered her tights and penetrated her vagina. This caused her pain, as she had not had sexual intercourse before. This constitutes Charge 13, a charge of incest. You continued the penetration for minutes before ejaculating. You did not wear a condom. In fact, you never wore a condom.
21After committing the offence in Charge 13, and before the start of term 4 in 2008, Tamara started sleeping with you in your bed in the hobby room. You sexually penetrated her in different ways about three times a week. Those ways were penetrating her vagina with your penis, her mouth with your penis and her vagina with your tongue. Each of these activities is the subject of a course of conduct charge of incest, being Charge 14 (penetration of her vagina with your penis), Charge 15 (penetration of her mouth with your penis) and Charge 16 (penetration of her vagina with your tongue). These charges cover the course of your conduct until Tamara’s sixteenth birthday on 15 January 2010.
22Later in 2008, you took Tamara to a medical centre to obtain a prescription for the contraceptive pill.
23During 2009, the building of the home was completed, and Tamara had her own bedroom. Nevertheless, she continued to sleep in your bed in the master bedroom. Your wife lived elsewhere in the house.
24In December 2011, you and Carmina separated. You, Tamara and Mikala moved to a home in Rocklands[12]. Carmina and the other children lived elsewhere.
[12] A pseudonym.
25You lived in the Rocklands home until 2 April 2014. During that time, you treated Tamara as your wife. You sexually penetrated her multiple times a week while living at Rocklands. These penetrations took the same form as before and are captured in the course of conduct charges of incest in Charges 17, 18 and 19. This misbehaviour continued until 31 December 2014.
26These charges captured the three forms of penetration, multiple times a week over a five-year period.
Incident 9
27Following the death of Carmina’s mother, in July 2012, she and your other daughters returned to live with you at Rocklands. Between 1 July 2012 and 30 November 2013, on an occasion at night, you demanded that Hazel come into your bedroom and massage your feet. After locking the bedroom door, you told her to lie on the bed, which she did. Having removed her clothing from the lower part of her body, you touched the outside of her vagina, saying you were cleaning her. This constitutes Charge 20, a charge of committing an indecent act with, or in the presence of, a child under 16. At the time, Hazel was between 12 and 13, and you were between 45 and 46.
28You then licked her vagina and clitoris and penetrated her vagina with your tongue. This constitutes Charge 21, a charge of incest. Hazel tried to close her legs, but you prevented her. She was extremely upset and scared.
29You then masturbated in her presence and ejaculated into a towel. This constitutes Charge 22, a charge of committing an indecent act with, or in the presence of, a child under 16. Hazel ran from the room and told no one of what had happened.
Incident 10
30Between 8 February 2014 and 2 April 2014, on an occasion at the Rocklands home, Mikala came home from school to find you kneeling in front of a computer, naked from the waist down. You were watching a video. You told her to come over, and she saw the video showing two young Asian females in a bath together. This constitutes Charge 23, committing an indecent act with, or in the presence of, a child under 16. Mikala was between 11 and 12, and you were 46.
31You asked Mikala to continue to watch the video. She refused and left the room.
32After the sale of the home at Rocklands, you, Tamara and Mikala moved to your factory in Wedderburn[13] to live. You continued to sexually penetrate Tamara in the manner described in Charges 17, 18 and 19. This misbehaviour continued until 31 December 2014, by which time Tamara was 20. By then, she had met her future husband.
[13] A pseudonym.
33Broadly, Tamara said the penetration of her was a 'constant routine and
non-changing'. In effect, she was dominated by your will. If she refused, you would become angry, and she would plead with you to make it up. During penetration, Tamara felt ill and would often cry afterwards.34On 19 July 2022, Belinda confronted you about what you had done to her. After a series of conversations between your daughters, between you and Elena and between you and Tamara, the police were informed. On 26 August Elena, you were arrested and have remained in custody since then. Your home was searched and your notebook found. It contained entries about your misbehaviour described in paragraph 86 of Exhibit A.
35The police also found your mobile phone, which contained child abuse material with three of the images classified as category 2. This is part of the rolled-up Charge 24, a charge of possession of child abuse material.
36An examination of your home computer discovered 116 images of category 1 child abuse material and three images of category 2 child abuse material.
37An examination of your computer at your factory showed two category 1 images and five category 2 images.
38Overall, there were 119 category 1 images showing naked female children of primary school age in sexual poses, exposing their genitalia, performing sexual acts alone, with or without devices or with others including adult males. The 11 category 2 images show naked females aged between four and 13, most in sexualised poses.
39The discoveries on your home and work computers form part of charge 24.
40The police interviewed you on the day of your arrest. You described your relationship with Tamara as 'quite good' and close as a father and daughter. You welcomed her marriage to Luke[14]. You wanted to talk to your lawyers before detailing what happened in the past although saying, 'Obviously some things have happened in the past', and, 'They're not good things, and I am deeply remorseful, more remorseful than you can imagine'. You declined to comment further. Plainly, your assistance to the police at that stage was very limited.
[14] A pseudonym.
41As I have already mentioned, the discovery of images both on your computer at home and in the factory and containing child abuse material form part of Charge 24.
Criminal history
42You have no criminal history. Usually that is a mitigating factor of some weight, but you started offending against your daughters from about 2004. Your good character before then is of little weight.
Victim impact statements
Tamara Underwood
43I was tempted to adopt the entirety of Tamara’s impact statement rather than summarise it, for a summary will not do it justice. But reading it may cause her more distress than a summary.
44It is a classic statement by an intelligent, articulate person recording the destruction of her childhood, adolescence and early adulthood. Despite her marriage, the effects of your offending will continue for the rest of her life. The effect of your behaviour upon her is profound. The final passage of her statement says:
What happened to me and the emotional toll it has taken on me is something I will have to live with for the rest of my life. It is something I have buried deep within me for most of my life and I have only now just started to try and process it and begin to heal.
45Reading her statement, I was uncertain whether she told her husband of the abuse at your hands. However, Exhibit A says she did so 6 August 2022.
46Your offending has had a profound impact upon her. So much is obvious from the opening sentences of her statement:
As ironic as it is, I coincidentally find myself beginning to write this statement on Father's Day. A day set aside to celebrate fathers and all they do for their children. The unconditional love and protection of their children. A day I sadly can no longer celebrate. I feel physically ill sitting down to write this.
47Her life will always be impacted by what you have done to her. She has lost her sense of identity and self-worth and because of your offending, she has been stripped her of her childhood innocence. You burdened her with the weight of such a horrific secret. She was ashamed of this secret and was scared to make friends in case anybody found out. She was isolated and never made friends. This made her feel unwanted and depressed. However, she has now realised your grooming and manipulation of her drove her back to you for comfort. She describes herself as becoming a 'shell of a human being with zero self-confidence'. She believed this about herself, that she was worthless. She has no outlook on life, no ambitions or sense of self.
48You have affected her ability to have a positive, healthy relationship with her husband. Even now, she feels like the inferior person in the relationship and that she needs to work hard to show her value due to insecurities. The burden of this secret continued into her relationship with her husband. She is afraid of having to lie to him if the issue was raised of her first sexual encounters or her relationship with you. Worse still, she is afraid to tell him the truth and risk their relationship. Pausing there, as I pointed out, she has told him in early August.
49Tamara explains how you still have an emotional influence over her, and it has had an immense emotional toll on her mental well-being. She felt she had to choose between being with her husband and leaving her younger sister with you.
50She has to live with this for the rest of her life. She has buried it deep within herself for most of her life but only now is beginning the process to heal.
Belinda Quinlan
51Belinda describes her childhood as traumatising. You stole the innocence of her childhood. You denied her the carefree, protected childhood she deserved. She never felt same in the family home. Your actions have impacted her childhood and her adulthood. She is unsure if she will ever be free of the pain and humiliation you have caused her.
52She suffers from night terrors, nightmares, anxiety, depression, post-traumatic stress disorder and panic attacks. She has thought about harming herself. She still does not feel safe in her home, particularly at night. She struggles to sleep.
53As an adult, she struggles to trust others. She finds it difficult to manage relationships and is concerned anyone close to her will hurt her.
54She describes you as a coward and an insult to her family. You were supposed to care for her and protect her. You did the opposite. Her family is completely broken, her relationships with her sisters are strained and she feels she has no one, is alone and unworthy because she does not feel like she has a family.
55She says your actions will one day be forgiven by her, but never forgotten. She will not let them defeat her.
Mikala Quinlan
56To Mikala, your offending against her has tarnished her life. She describes it as 'beyond horrific'. She has kept it hidden from others for a large part of her life. There is not a day that goes by when she does not think about the abuse. She feels haunted about what you did to her, and it will be something she has to live with. It has impacted her relationships with others, causing her to feel isolated and to drop out of university.
57Your offending has mentally and physically drained her. She has been diagnosed with depression and is now medicated. It was emotionally destructive for her to continue living in the home and all she wanted was a stable and safe place to live. She struggled to find employment due to her mental health, which has affected her financially.
Personal
58You are now 56. You were born in Konya, Turkiye[15] and resided with your mother and grandparents until you were aged seven. Your father was married to another woman, and as such, you were not seen outside your home until you commenced school around the age of five. When you were two, you and your family experienced war and were declared state criminals, being stripped of your family's assets including your family home and your grandfather's business.
[15] A pseudonym.
59Your grandfather, grandmother and mother resented what had occurred. Your grandfather verbally abused you. However, you had a good relationship with your father, stepmother and half-brother, although not seeing them often.
60Your childhood left you mainly fending for yourself. Your mother returned to work as a nurse, which left you alone. From the age of eight, your mother worked as a nurse and was required live at the nurse's hostel, leaving you homeless. You lived in a paddock or a juvenile facility between the ages of eight and 12. During this time, you were physically abused by other children at the juvenile facility. Sometimes, your mother admitted you to the hospital so you had shelter. However, you were then forced to take medication and undergo enemas.
61At age 10, you were involved in a car accident where your father fell asleep at the wheel. It resulted in a head injury where you spent a month in hospital. You visited your father back in Lebanon[16] in the 1990s. He died later.
[16] A pseudonym.
62You began to attend school from the age of 13. However, you were ultimately rejected because of the earlier declaration of you as a state criminal. You then attended military school and were bullied. Overall, you attended school for only three to four years.
63In 1968, you and your mother escaped to Germany[17]. You spent two to three weeks in political asylum where you witnessed your mother being raped.
[17] A pseudonym.
64In 1982, you emigrated to Australia. You arrived in this country with nothing. You settled in Melbourne and lived with your uncle. You did not speak English and left Wedderburn high school[18] after 18 months due to the language barrier and bullying. You commenced a cabinet-making apprenticeship and commenced working with your uncle.
[18] A pseudonym.
65You purchased a block of land in Lismore in 1984 and commenced building the house. Your work with your uncle, and other uncle who arrived in Australia, was largely unpaid and you were taken advantage of. This continued when you worked for Mr Dorsey[19], who accrued a debt on your trade account for your house. You were then employed by a plumbing company where you were verbally abused.
[19] A pseudonym.
66From here, you commenced your own joinery business, which ran for 35 years, right up until your arrest. Just prior to your arrest, you were working 10 hours a day, seven days a week. You enjoyed your work.
67Your mother and grandmother sexually abused you during your childhood. This occurred with your mother between the ages of seven to 13 and then your grandmother from the age of 13 and for about a year. You detail the abuse encompassing that of washing of your grandmother and her genitals. You recall witnessing your grandmother washing your uncle's wife, and you would masturbate and ejaculate in front of your mother after washing her.
68At age 23, you met and started dating your first wife, the mother of the complainants. You married in 1992, and Tamara was born 18 months later, followed by Belinda, Hazel and Mikala. When she was born, you had to 'buy out' your mother of the Lismore property in order to move in, as she would not let you and your family live with her. You separated from your first wife in 2014.
69In 2016, you met your second wife, Elena, and married a year later. She has a daughter from a previous relationship, and you and Elena share a daughter together.
70You have no history of alcohol or drug abuse.
71You suffer from some health issues, namely you are legally blind from a failed eye surgery. You suffer from plantar fasciitis, cysts on both kidneys (size of a tennis ball), high blood pressure, colon polyps and atrial fibrillation. You suffer from sleep apnoea and require a CPAP machine. You also suffer from a spinal injury and associated back pain.
72Since your remand, you are now practising as a Buddhist.
73The psychologist, Pamela Matthews, describes your health issues in her report. Having been diagnosed, I expect they are treated or monitored although you are sleeping poorly through the inability to use your CPAP machine properly.
Psychologist
74Ms Matthews is an experienced forensic psychologist. At the request of your solicitors, she interviewed you on 20 August 2023[20]. Much of your personal details come from her report.
[20] Report dated 17 October 2023.
75In searching for the reason for your offending, Ms Matthews said[21]:
‘... Mr Quinlan’s intrafamilial abuse of his four daughters and the entitlement and lack of empathy associated with that abuse are directly related to Mr Quinlan’s history of interfamilial abuse by multiple family members during his developmental period of childhood to late adolescence – early adulthood.’
[21] At p16.
76Ms Matthews diagnosed you as suffering from several recognised psychological disorders. Your post-traumatic stress disorder is longstanding and untreated. I do not understand Ms Matthews linked this disorder with your offending.
77She also diagnoses you as suffering from three specific sexual disorders: paedophilia, hebephilia and ephebophilia. The last two diagnoses cover your sexual preference for females between the age of 13 and early adulthood. None of these disorders has been treated.
78Ms Matthews diagnosed you with a borderline personality disorder when she said you 'present with symptoms indicative of a resolving borderline personality disorder'.
79Apart from the sexual disorders, the others leave you with[22]:
‘... a compromised ability to recognise the feelings and needs of others associated with interpersonal hypersensitivity. Intense feelings of nervousness, tenseness or panic often react to interpersonal distress, worry about negative effects of past unpleasant experiences and future negative possibilities and feeling fearful, apprehensive, or threatened by uncertainty. He also suffers separation insecurity marked by loneliness and an internal sense of emptiness. He would, however, not currently meet the full criteria for this disorder.’
[22] At p16.
80As to prognosis and treatment, Ms Matthews describes you as most likely to reoffend when you have access to familial female children in the home or the home of a family friend. She recommends targeted sex offender treatment, as this is likely to reduce the risk of that form of offending. She does not describe the sort of treatment she has in mind, its frequency or longevity.
References
Quinlan
81Elena Quinlan has been your wife for nearly seven years. She is shocked and horrified by the revelation of your offending. She speaks of your love for her, Emma and Phoebe and her perception of the good relationship with the children of your former relationship, the present complainants.
82Your wife brought into your marriage a daughter, Emma, from an earlier relationship.
83She describes you in these terms:
‘Through the years of our journey as a married couple, I believe that a good husband is someone that has the eight qualities of a man: love and affection, respect vows, protect the family, adapt to change, provide structure and create great bond for the family, genuine and loyal and demonstrate sensitivity. Will has all these traits.’
84She speaks of your regret and remorse for what you have done. She says the entire family supports you. By 'entire', I understand she is including her family in the South Africa[23].
[23] A pseudonym.
85She raises the issue of reformation often seen in these types of cases when she says:
‘He made mistakes in the past but that doesn't define him in the present and I am confident that this will remain a past incident for Will from which he will learn lessons that he will use from here onwards.’
Berine
86Iris Beirne[24] is your wife's sister. She has known you for about seven years. She speaks of you as a husband to her sister and a father to the children, Emma and Phoebe. She speaks of your generosity and encouragement to her and generosity to her family in the South Africa.
[24] A pseudonym.
Kosma
87Travis Kosma[25] is your wife's former partner and the father of Emma. He speaks of your excellent reputation in the construction industry. In the time he has known you, your behaviour has been appropriate. You have encouraged him to spend time with his daughter, for which he is grateful.
[25] A pseudonym.
Seward
88Nathan[26] and Angela Seward[27] are your parents-in-law. They, too, speak highly of you as a person, including your generosity to them and their community in the South Africa.
[26] A pseudonym.
[27] A pseudonym.
89A theme in their letter and in several of the other letters is asking for you to be returned to your loving family.
Aston
90Marta[28] and Trent Aston[29] have a neighbouring business to your business. They speak well of you as a worker and businessman. Through their frequent contact with your wife, they know of your efforts with your family and her family in the South Africa.
[28] A pseudonym.
[29] A pseudonym.
Salcedo
91Jon Salcedo[30] has known you for about five and a half years; your daughter attends the same primary school as his daughters. One of her daughters is the best friend of one of your daughters. He counts your wife as a dear friend. When told of your offending, he did not believe it, for you had never shown any behaviour pointing in the direction of incest. Her daughter has slept over at your home, and you and your wife have babysat one of their daughters.
[30] A pseudonym.
Discussion
Purposes
92Section 5(1) of the Sentencing Act 1991 ('the Sentencing Act') sets out the purposes for which sentences may be imposed:
(a) to punish the offender to the extent and in a manner which is just in all of the circumstances;
(b) to deter the offender or other persons from committing offences of the same or a similar character;
(c) to establish conditions within which it is considered that the offender's rehabilitation may be facilitated;
(d) to manifest the denunciation of the type of conduct the offender engaged in; and
(e) to protect the community from the offender.
93Each of those sentencing purposes is relevant to your sentencing.
94Your offending against your daughters involve behaviour which is the antithesis of the behaviour of a father to his children. It represents a complete breach of the trust and responsibility which exists between a parent and a child. Invariably, it damages the child psychologically, often forever. These, and other considerations, were powerfully stated by Justice Marks in the case of R v Sposito[31]:
‘A society which fails to protect its children from sexual abuse by adults, particularly those entrusted with their care, is degenerate. The offence of incest is particularly erosive of human relations and casts doubts upon the assumption that parents are natural trustees of the welfare of their children. It might be unnecessary to recount the morbid features of incest, the most prominent of which include the exploitation by the stronger will of the adult of the weaker will of the child, the physical and psychological subordination of the child to the perverted indulgences of the adult, the gross breach of trust placed in the offender by the victim and the community, and the irreparable fundamental damage to the victim.’
[31] Supreme Court of Victoria, unreported, 7-8 June 1993.
95Even without the intervention of provisions like s 6E of the Sentencing Act, your crimes are extremely serious. Section 6E is the intervention of Parliament seeking to increase the severity of sentences imposed by courts on persons who offend as you have.
Maximum penalties
96The maximum penalties for the offences the subject of the charges are:
(a) incest – 25 years' imprisonment. This is the second highest maximum penalty for a criminal offence in this State, with the highest being life imprisonment;
(b) committing an indecent act with, or in the presence of, a child under 16 – 10 years' imprisonment; and
(c) possession of child abuse material – 10 years' imprisonment.
Nature and gravity of the offences
97Apart from the possession of child abuse material, you committed these offences against your four daughters. Tamara is your eldest daughter. Your offending against her started in 2004 and continued until 2014, that is, from her age of about 10 until 20. Against Belinda, your offending occurred between 2004 and 2007 and between her ages of nine and 12. Against Hazel, you offended when she was between 12 and 13. Against Mikala, you offended against her once when she was between 11 and 12.
98The offending started with Tamara in the period between January 2004 and January 2006. Your offending against Belinda started in the period of October 2004 and January 2006. While your offending against Tamara started with acts of penetration, between October 2004 and January 2006, you caused Belinda to masturbate you 'quite regularly' while you were in the bath.
99Charges 7, 14, 15, 16, 17, 18 and 19 are course of conduct charges. Each of those charges asserts more than one incident involving the same kind of offence against the same victim and justifying the description 'course of conduct'. For example, Charge 14 is a course of conduct charge of incest. In effect, it alleges you introduced your penis into Tamara’s vagina on more than one occasion between 25 April 2008 and 14 January 2010. Combined with Charges 15 and 16, the allegations are you penetrated Tamara about three times a week in one or other of three forms: penis to vagina; penis to mouth; and tongue to vagina.
100Charges 17, 18 and 19 capture the same behaviour and a somewhat similar frequency after Tamara’s sixteenth birthday until the end of December 2014. In combination, Charges 14 to 19 capture a course of conduct of some form of penetration regularly performed on Tamara between 2008 and 2014: a period of about six years. Each of those charges represent a serious form of what is a serious offence.
101Sentencing for course of conduct offences requires a sentence which reflects the totality of the offending constituting the course of conduct. In the case of the DPP v Tullipan[32], the court contrasted the sentencing process for a single charge with a 'course of conduct' charge:
‘With a course of conduct charge … the judge is typically confronted with a large, or very large, number of instances of the one offence and is expected to arrive at a single sentence which 'reflects the totality of the offending', while operating within the limit of the maximum penalty applicable to a single instance of the offence.’
[32] [2021] VSCA 191 at [5].
102After Tamara was prescribed the contraceptive pill, there was an occasion when she forgot to take it. She feared pregnancy. It did not occur, but there was a risk of pregnancy on an isolated occasion. It differs from those cases when there is a very real risk of pregnancy or in fact pregnancy occurs.
103There was a period when you had penile/vaginal intercourse with Tamara before she was prescribed the contraceptive pill. However, it is not suggested she was at risk of pregnancy in that period.
104It is stating the obvious that your offending against Tamara was of the highest order. Your offending against your other daughters was not of that order but was very serious.
Serious sex offender
105Since I will sentence you to imprisonment on Charges 1 and 2, on the other charges you are to be sentenced as a 'serious sex offender'. The effect of this is to raise the following:
(a) of the purposes of sentencing which I spoke about earlier, I must place the protection of the community as the principal purpose;
(b) the sentences imposed should be served cumulatively upon each other unless I direct otherwise;
(c) I may impose a disproportionate sentence. However, such a measure was neither sought by the prosecution nor, in fact, warranted in your case.
Totality principle
106Where multiple offences are charged, the totality principle requires the total sentence must be proportionate to the totality of the offending.
107Mr O'Toole for the Director referred me to passages from two judgments of the Court of Appeal dealing with s 6E and the principle of totality. From those passages[33]:
(a) the totality principle must not be applied in a way which undermines the legislative policy inherent in s6E;
(b) as the objective gravity of the total offending increases so will the degree of cumulation. Doing so should ensure a total effective sentence which will more closely correspond with the policy in s6E and the principle of totality;
(c) s6E requires the specific denunciation for each offence to which it applies;
(d) where there is more than one victim, the offences against each will be the subject of separate and distinct punishment and, generally, involve orders for cumulation moderated to give effect to the totality principle so far as that can be done consistently with the policy of s6E.
[33] Gordon v R [2013] VSCA 343 at [74] and DPP v Bales [2015] VSCA 261 at [44].
Rehabilitation
108Ms Matthews identified the most likely circumstance where you would reoffend sexually. Having diagnosed you as suffering from recognised disorders involving young females, although the most likely, it would not be the only circumstance. With the legislative policy in s6E of putting to the forefront the need to protect the community from you, this purpose of rehabilitation retains its force.
109While in custody, you have used your skills as a cabinet maker to work. You have undertaken a course. Much of the time was unavailable because you were deciding how to approach the charges against you. It is reasonable for you not to undertake courses while you were undecided as to how to proceed.
110I have summarised the references. They portray you in a different light than that revealed by your offending. In my experience, references often have that effect. But you have remarried. You have a daughter. You have assumed responsibility for your wife's daughter and act towards her as her father. On the strength of those references, one could find you have reformed yourself.
111On the other hand, at the time of your arrest, the police found child abuse material on your electronic devices. They display a perverted sexual interest in young females. Ms Matthews has diagnosed you with recognised sexual disorders. Ms Matthews appears to consider these disorders are capable of treatment.
112My total sentences will be long. They should act as a powerful deterrent to future misbehaviour.
113I consider you are remorseful, and that should translate into a determination not to reoffend.
114Your counsel points to the telephone conversation between you and Tamara on 24 August 2022 as pointing to some real insight on your behaviour. I doubt that that conversation pointed that way.
115Weighing those factors, I consider your prospects of rehabilitation are positive.
Verdins
116Although you do not rely upon the principles in the case of R v Verdins[34] or, indeed, on Bugmy v R[35], it is clear from Ms Matthews' report, your early life has had a profound effect on you. Your crimes against your daughters are abominations. Those who would commit similar crimes against their children may well have somewhat similar backgrounds, especially relating to sexual abuse. From the perspective of general deterrence, I would not moderate its effect because of your background.
[34] (2007) 16 VR 269.
[35] (2013) 249 CLR 571.
117I do not consider the effects of your early life reduces to any appreciable degree your moral culpability. Your blameworthiness is extreme, and those effects make only minor difference.
Guilty pleas
118You were arrested on 26 August 2022. There was a filing hearing in the Magistrates' Court that day. There were five committal mention hearings between 25 November 2022 and 23 June 2023. On the last date, you were committed for trial based on the brief of evidence and you entered guilty pleas. From there, the proceeding moved quickly to a plea hearing on 27 October 2023. In terms of the timing of the entry of your guilty pleas, they occurred early in the process, starting with your charging and ending in a jury trial.
119There are several benefits of your guilty pleas. They are an emphatic acknowledgement of your offending. They show your daughters and anyone else that what they say is true. Even nowadays that is an important consideration.
120Second, they relieve your daughters of the need to give evidence against you in a trial. Your stance taken at the last committal mention hearing avoided the giving of any oral evidence at all.
121Third, you have assisted the criminal justice process. You have removed your case from those needing a jury trial, allowing others to move forward. This has saved the delay, time and expense of a trial. Generally, jury trials are complicated affairs involving 12 jurors and others over a number of days. Avoiding that is a considerable benefit to the criminal justice system.
122Fourth, your guilty pleas are evidence of your remorse, and I accept you are remorseful.
123Fifth, the crisis addressed in Worboyes v R[36] and other cases has abated. Recently, this court announced it had overcome the backlog of cases due to the pandemic. It had reached the pre-pandemic levels of pending cases. But in another respect, the virus still disturbs the smooth running of jury trials in this court, principally through the unavailability or loss of jurors. Pleading guilty now attracts some of the benefits to the system identified in the case of Worboyes.
[36] [2021] VSCA 169.
124Your guilty pleas entitle you to a significant discount on the sentences which would have been imposed if you had pleaded not guilty to these charges but had been found guilty after a trial.
Current sentencing practices
125The prosecution provided a summary of sentencing appeals in the Court of Appeal[37]. From the perspective of comparable cases and the exposition of sentencing principle, they were helpful.
[37] Boxer [2021] VSCA 300; Caulfield [2023] VSCA 76; Dalgleish (No 2) [2017] VSCA 360; Harlow [2018] VSCA 234; Harmon [2017] VSCA 169; Polat [2020] VSCA 174; Tullipan [2021] VSCA 191; Trangle [2021] VSCA 210 and Weir [2023] VSCA 113.
Sentences
126On Charge 1, you are sentenced to three years' imprisonment.
127On Charge 2, you are sentenced to six months' imprisonment.
128On Charge 3, you are sentenced to three years' imprisonment.
129On Charge 4, you are sentenced to nine months' imprisonment.
130On Charge 5, you are sentenced to 12 months' imprisonment.
131On Charge 6, you are sentenced to 12 months' imprisonment.
132On Charge 7, you are sentenced to two years' imprisonment.
133On Charge 8, you are sentenced to three months' imprisonment.
134On Charge 9, you are sentenced to three months' imprisonment.
135On Charge 10, you are sentenced to 12 months' imprisonment.
136On Charge 11, you are sentenced to 12 months' imprisonment.
137On Charge 12, you are sentenced to 12 months' imprisonment.
138On Charge 13, you are sentenced to six years' imprisonment.
139On Charge 14, you are sentenced to eight years' imprisonment.
140On Charge 15, you are sentenced to eight years' imprisonment.
141On Charge 16, you are sentenced to eight years' imprisonment.
142On Charge 17, you are sentenced to 10 years' imprisonment.
143On Charge 18, you are sentenced to 10 years' imprisonment.
144On Charge 19, you are sentenced to 10 years' imprisonment.
145On Charge 20, you are sentenced to 12 months' imprisonment.
146On Charge 21, you are sentenced to six years' imprisonment.
147On Charge 22, you are sentenced to nine months' imprisonment.
148On Charge 23, you are sentenced to four months' imprisonment.
149On Charge 24, you are sentenced to nine months' imprisonment.
150The sentence on Charge 17 is the base sentence. Nine months of each of the sentences on Charges 14, 15, 16, 18, 19 and six months of the sentence on Charge 7 and 12 months of the sentence on Charge 21 and one month of the sentence on Charge 23 are to be served cumulatively upon themselves and upon the base sentence. The remaining sentences of imprisonment are to be served concurrently. The total effective sentence is 15 years and four months' imprisonment.
151I will set a non-parole period of 10 years and three months' imprisonment.
152I will declare your 461 days of pre-sentence detention (excluding today) as time served under my sentences today.
Section 6AAA
153If you had not pleaded guilty to these charges but had been found guilty after a trial, I would have sentenced you to a total effective sentence of 19 years' imprisonment with a non-parole period of 13 years' imprisonment.
Forfeiture
154I will make the forfeiture order in the terms of the draft order.
Serious sex offender declaration
155For Charges 3 to 24, I have sentenced you as a 'serious sexual offender'. I will cause that fact to be noted in the records of the court.
Sex Offenders Registration Act 2004
156For the purposes of the Sex Offenders Registration Act 2004, Charges 1 to 23 are class 1 offences. Since you are guilty of two or more class 1 offences, the reporting period is life.
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