Director of Public Prosecutions v Reynolds

[2017] VCC 692

IN THE COUNTY COURT OF VICTORIA Revised
 Not Restricted
Suitable for Publication

AT MELBOURNE

CRIMINAL DIVISION

CR-17-00291

Indictment No. G12898212

DIRECTOR OF PUBLIC PROSECUTIONS

v

ERIC REYNOLDS (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE TINNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	1 May 2017
DATE OF SENTENCE:	8 May 2017
CASE MAY BE CITED AS:	DPP v Reynolds
MEDIUM NEUTRAL CITATION:	[2020] VCC 692

REASONS FOR SENTENCE

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Catchwords: Indecent assault, indecent act; incest.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms Dipietrantonio	Office of Public Prosecutions
For the Accused	Mr J. Fitzgerald	Victoria Legal Aid

HIS HONOUR:

1Eric Reynolds[1], last Monday, you pleaded guilty to five charges laid on the indictment filed before me.  You have no criminal history at all.  The charges comprise one charge of indecent assault upon your daughter in the 1980s and four charges pertaining to her children, your grandchildren, in the period December 2015 to October 2016.  Namely, incest against your ten year old grandson as well as two indecent act offences where he is the victim, and one charge of indecent act relating to his eight-year-old sister.

[1] A pseudonym.

2The agreed summary sets out the basis of the charges as well as the maximum penalties.  Some of the offences are representative in nature.  I sentence according to the principles dealing with representative charges.  See the cases of CJK [2009] 22 VR 104, and DPP v SBL [1999] 1 VR 706. There is a benefit to you in having the matters proceed in such a way, but it also permits me to view the wider or broader context. However, unusually in this case the representative Charge 3 relates to conduct occurring on a single day. Likewise, the representative Charge 4 relates to conduct occurring on another single day. Two of the three acts embraced by the representative Charge 2 occurred on the same day as the incest. So the representative nature of the charges does not deal with conduct spanning many months or even years, as often enough is the position. One of the offences (Charge 1) is a composite offence which permits me to actually sentence for all of the conduct so embraced by that charge. That is a different position to the representative charges, obviously. One of the charges is a specific charge, being the offence against your granddaughter (Charge 5).

3As the written opening dated 1 May is an agreed statement, I simply see no need to set out the full factual basis of sentencing in these, my sentencing remarks.  I will not go beyond the agreed factual statement.  You have obviously committed a serious sexual offence against your own daughter back in the 80s.  Then almost three decades later, you have offended against her two children, your grandchildren.  You were interviewed by the police on 18 October of last year, and though you were cooperative, you displayed virtually no insight into the seriousness of your conduct.

Victim impact

4There are three victim impact statements.  I see no need to set them out in detail.  There is no issue taken with them, other than Mr Fitzgerald clarifying, as he did, that page 12 of your granddaughter’s impact statement does not relate to your offending at all, rather to some other family issues which had arisen and which caused some difficulties.  I accept that and will not act on that page at all.

5The impact here though is sizeable.  Your grandchildren are still very young.  Their impact statements are very simplistic because of their ages.  They have obviously been affected, but will not even know at this stage the true impacts that lie ahead for them.  How could they?  As to your daughter, you have totally betrayed her trust in you.  Once, when she was your direct victim in the 1980s, and then again when offending against her children all those years later.  As she says, the emotions are hard for her to describe.  She feels heartbroken, overwhelmed, tearful, frustrated, betrayed, deceived, and angry.  She even has a sense of being in some way to blame for the things that obviously were beyond her control.  Of course, she is not to blame for anything.  The whole process is compounded by the two stages of your betrayal of her.  She had tried to get on with her life after your abuse of her in the 1980s, and now finds herself reliving the situation through her own children courtesy of your most recent serious offending.    

6I take into account the impact of your offending.  It is very significant.

Submissions In mitigation

7Mr Fitzgerald, who appeared for you, raised a number of matters in mitigation.  They were not numerous and included:

·Your guilty plea and the early stage of the plea;

·The presence of at least some remorse;

·Your level of co-operation with the police;

·Your increased custodial burden owing to your age and poor health;

·The absence of any past or relevant subsequent offending;

·He argued that you had good prospects of rehabilitation and that the weight to be given to specific deterrence could be reduced;

8Mr Fitzgerald conceded that this was serious offending with the inevitability of a term of imprisonment and one requiring the fixing of a non‑parole period.

Crown Submissions

9Ms Dipietrantonio, on behalf of the Director of Public Prosecutions of this state, made a number of submissions as to the seriousness of the offending.  She argued that there was a large breach of trust related to your conduct in touching your daughter in the 80s, and then in touching her children all those years later.  You betrayed her trust on those two occasions and of course the children’s trust in you.  She questioned the level of insight given what you told your daughter when she confronted you, what you told the police, and what you told Mr Cummins.  She submitted that you knew what you were doing was wrong, as you had in fact told the children not to tell their mother.  The prosecutor made submissions as to the relative seriousness of the individual offending, as well as taking me to some matters of aggravation.  The children were young.  The offending occurred in their own home where they were entitled to feel safe or in your home where you were clearly in a position of trust.  Sometimes, the offending occurred in the presence of the other child or at least with the other child in the same house.  The Director of Public Prosecutions challenged the assertion that you had good prospects of rehabilitation, given the chronology of offending and your very minimal insight.

10Each counsel made some reference to the case of Dalgleish as having at least some relevance to my task.  That decision is a relatively recent decision of the Court of Appeal dealing with sentencing practices for the crime of incest and the inadequacy of sentencing practices in some cases.

Background

11I turn only briefly to your background.  I have no reason not to accept the personal and family background placed before me, and I do accept it.  It is contained in the report of Mr Cummins, Exhibit 2, and expanded upon in the written submissions of your counsel.  None of your personal or family background in any way explains your offending, either in the 1980s or now.  Again, I see no need to restate to you your own personal and family background.  You know what it is.

12You are now 70 years of age, born 15 August 1946.  You were married once but divorced very many years ago now.  You had an excellent work history, with 40 years plus in the Australian Tax Office.  You have no criminal history at all.  It is obvious enough from the materials placed before me that you have a number of health conditions which will increase your burden in custody, including pain management issues relating to a back condition as well as type 2 diabetes requiring daily insulin injections.  These various conditions are referred to in the bundle of medical documents that have been marked as Exhibit 3.  You have had a couple of serious falls in the recent past and you have now, it would seem, limited mobility.

Guilty plea

13I turn now to some of the other matter raised on your behalf.  Firstly, your guilty plea.  You have pleaded guilty and you have done that at the earliest stage.  Earlier still, of course, you were co-operative with the police and made very significant admissions which I take into account in your favour.  I accept that your plea of guilty must have a strong utilitarian value.  It was entered at the earliest opportunity.  It is important that you have ultimately taken full legal responsibility for your offending.  Not everyone does this, especially those charged with sex crimes, where very often it is word against word.  Very often people run the matter to trial and take their chances before a jury.  That has a deep impact upon victims when they are called as witnesses.  That has not happened here.  Whatever may be said as to your past and present lack of insight, you have at least taken full legal responsibility for the crimes you have committed.

14The community has been spared the time, the cost, and the effort associated with a committal or criminal trial.  You have facilitated the course of justice by pleading guilty and at the earliest stage.  This is significant in any case, but more so in the case of sexual matters.  Your victims have been spared the experience of actually coming to court and giving evidence and being cross‑examined in relation to this sort of matter.  Even with all the improvements that exist in the way the evidence is received using alternative procedures, it can still be a very stressful experience indeed to relive the experiences in court under cross‑examination, especially for young victims.  All of your victims have been spared that experience by your plea.  Your daughter, in her victim impact statement, comments on her relief in that regard.  So I do take into account the fact of and stage of your guilty plea.  I am going to pass a significantly lesser penalty because of those matters.  So too your cooperation with the police.  Again, that must be taken into account in your favour and I do take it into account.

Remorse

15I turn now then to the issue of remorse.  This is far less clear cut.  Not everyone who pleads guilty is remorseful; some are, some are not.  I have read your interview in detail.  There is virtually no expression of any insight to be found in the interview.  The same really can be said in relation to the more recent conference that was held with Mr Cummins.  He speaks of your distorted thinking.  You still, for whatever reason, have difficulty seeing that you have actually done anything particularly wrong.  You even now deny any sexual element to what you were doing.  You deflected the seriousness of the conduct in your dealings with the police and with Mr Cummins.  You describe, for instance, to Mr Cummins being "reckless" and “finding out that you have crossed the line”.  You told police that the acts meant nothing.  Mr Cummins speaks of this indirect evidence of your holding attitudes which condone sexual offending.

16Your counsel was not suggesting that I could find some large level of genuine remorse and he is undoubtedly right in that submission, but he points me to your guilty plea and your strong desire to spare your victims the experience of giving evidence.  He argues that I should consequently find the presence of at least some level of remorse implied from your guilty plea.  I am prepared to accept that submission.  I am prepared to find that you do have at least some level of remorse for your offending, but it is far from complete and that is owing no doubt to your virtual total lack of insight and your distorted way of thinking about these things.  I take the presence of some remorse into account in your favour.

Mr Cummins report

17I have mentioned already the report of Mr Cummins and I do take it into account.  It is obvious enough that whatever tag or label might be applied, you have had in the past, and more recently, some sexual interest in children.  He comments on that in paragraph 43 of the report.  That is the position, despite your denials of any sexual element and despite your claim of obtaining no sexual gratification.  I take into account Mr Cummins' assessment as to your current level of risk in re-offending sexually against a child.  It is moderate/high, though he would expect it to reduce with further treatment in the years ahead to, at least, low/moderate.  This offending against your grandchildren occurred in the setting of your having apologised to your own daughter and having assured her that her children were safe with you.  They were not.  Given your mindset, you currently would present as a danger to any child coming in to your sphere.  Anyway, I take into account Mr Cummins' report.

Increased burden/age

18I take into account the medical material dealing with your various physical conditions.  I also take into account your age now.  As I have already said earlier in these reasons, I am prepared to find an increase in your custodial burden.  Prison will not be easy for you.  You are there for the first time.  That is hard enough.  Secondly, though, you have the physical and health conditions which will make it harder still.  There will obviously be an elevated burden and I take that into account.  I also have regard to your age, in the sense that each year of the sentence which I will impose represents a not insignificant portion of your remaining life.  I do not lose sight of that, but age cannot justify the imposition of an inappropriate sentence.  The fact is, you committed the offences against your grandchildren relatively recently when you were either 69 or 70 years of age.  Age alone simply cannot be a powerful factor in this case.

Rehabilitation

19Your counsel argues that I should find that you have good prospects of rehabilitation.  At one point he seemingly qualified that and said reasonable to good prospects.  He points to your lack of criminal history, to your long employment history, and pro social values in support of the submission that he was making.  Also, to your deteriorating health, more limited mobility, and lack of, for want of a better term, "access" to children.  He pointed also to the deterrent effect of the sentence that the court would impose upon you and your stated willingness to be counselled and treated in the future.

20I do not agree that your prospects are good.  Given the offending occurring against your daughter in the 1980s and then against your grandchildren 30 years later in the setting of your having assured your concerned daughter of their safety, it is hard to be impressed by your future prospects.  If I then add into the mix your virtual total lack of insight as disclosed in the police interview and in the more recent conference with Mr Cummins, and it is my view that I can only be relatively guarded as to your prospects. It is very difficult to know what the future holds for you.  You may well be required to do a sex offenders program and you will also, I am sure, have some restraints imposed by the Sex Offender Registration Act 2004.

21I accept that it is possible that your insight may develop and your distorted thinking may dissipate.  It is the position that the offending for which I have to pass sentence occurred in a familial setting, and in that sense it was situational or opportunistic.  Surely, no member of your family or any person privy to the details of the offending will hereafter trust you with children ever again, and in that sense there is that protective factor.  But that is a very limited number of people.  You may still have some incidental contact with children.  I have no idea.  My sentence I am sure will serve, to some degree, to deter you and to protect the community from you.  I am prepared to find that you have reasonable prospects of rehabilitation, but I judge it to be speculative for me to rate them any higher than that.  I just cannot know.  With your distorted thinking and total lack of insight, you presently are a real danger and may still be upon emerging from prison.  Age, impotence, and failing health did not impede your most recent offending.  Nor even your knowledge that the mother of the children who had some insight into your proclivities was standing off to the side.  I cannot know exactly what impact counselling and treatment will achieve in your case, or even for that matter, if you will undergo it.  You say now that you will and Mr Cummins has an expectation of the sex offenders program being administered and reducing your risk, but we are a long way from that position now.  It is very much speculative to consider the impact of counselling and treatment that might even not occur.

Current sentencing practice

22I take into account, as I must, current sentencing practices.  I have looked at the relevant Sentencing Advisory Council snapshots; number 178 for indecent act, and 192 for incest.  Also, a range of materials in the sentencing manual, including overviews and case summaries for incest, for indecent act, and even for indecent assaults in some instances.  One has to be very careful in looking at other cases and at statistics.  There are differing aggravating and mitigatory considerations, differing durations and frequencies and impacts, different ages.  Also, sometimes, even differing maximum penalties.  No two cases are ever the same.  I must also consider the impact of the case of Dalgleish in this area.

23The fact is though that no amount of looking at statistics or other sentencing outcomes in other cases can or does provide the answer to the correct exercise of my sentencing discretion in your case.  That is because each case is very different, and so too every offender.

Offence Gravity

24The principles which govern sentencing for crimes of this nature, that is sexual crimes against children, are very well established.  Offending such as this is viewed very seriously by the courts.  How could it not be?   

25As to the crime of incest, the recent pronouncements of the Court of Appeal in the case of Dalgleish are quite unequivocal.  That case corrected or sought to correct any misconception as to such crimes as yours not being accompanied by violence.  The Court of Appeal concluded that current sentencing practice does not reflect the objective gravity of the offending or the moral culpability of the offender.  The court spoke of the recurring themes in incest cases being extreme invasion of the victim's person, exploitation of a vulnerable child, violation of societal norms, long term and severe impact, serious breaches of trust, and an undermining of the familial roots of society.  Those features are common in incest offences occurring across the range of seriousness and are not limited to occasions in which an actual parent offends.  The factors distinguishing worst case offending from midrange and lower offending is the nature and the extent of the offending conduct, its frequency and duration, and the circumstances in which it occurs.  The Court of Appeal in that decision concluded amongst other things that the sentences imposed devalue the objective gravity of the offence as informed by the egregious breach of trust and the known appalling consequences for victims.  The court concluded that sentencing courts must, by increments, increase the sentences at least for midrange incest offences.  I have regard to that case more in terms of its statement of principles relating to the seriousness of the crime.

26Leaving aside the offence of incest, the other offending, be it the indecent assault upon your daughter or the indecent acts upon the grandchildren, is also undoubtedly serious conduct.  That conduct involved a breach of trust, to your own daughter in the 80s and to your grandchildren.  It also obviously involved some level of premeditation.  It occurred in a setting where you had tried to set your daughter’s mind at ease, assuring her that you would not offend against her children in the way that you had against her.

27I must pay regard to the gravity of the offences before the court.  As to Charge 1, you were the victim’s father.  You had an obligation to care for and to protect her.  You were an adult.  You were her father.  Instead you touched her sexually in the way described and had her touch you.  It was serious conduct; it involved intimate areas.  As to the later offending against your grandchildren, we have the setting of them coming into your care and the way in which that occurred.  The breach of trust is very high indeed.

28One can regrettably, sitting up here, always envisage a worse case, but that does not render the instant case less serious.  True it is, there are many aggravating features that are absent here.  Your daughter, for instance, was between nine to 11 years of age, so not as young as some victims.  There was no additional physical violence against her or your grandchildren over and above the actual physical acts that you performed.  There was no making of pornography, or sharing of images, or introduction of any third parties or outside players.  There were no weapons, or payment, or application of violence over and above the actual acts themselves.  Nor was the abuse of a long‑term duration.  The incest, though laid as a representative charge, occurred as I have said on a single day.  So too the conduct the subject of Charge 3.  However, the absence of some aggravating features cannot obscure the clear presence of a number of features of aggravation here.  Now, I must not doubly count the breach of trust when dealing with the crime of incest.  Incest necessarily includes that component in every case.  But the other offences to which you have pleaded guilty can be committed in the absence of a breach of trust, and all of your offences occurred in a significant breach of trust.  Your own daughter in her own bed at night.  Your grandchildren, either in their own home with you looking after them as the adult in charge or in your home in the same setting.  You as the responsible adult and one who had, given the earlier history, promised to look after their best interests.  A promise given to their mother, your daughter, someone who had tried her best to forgive you and who, though concerned about your past conduct, acted on your promise.  As to the offending committed upon the grandchildren, sometimes one was present as the other was touched.  They were told not to tell.  These were serious crimes.  Obviously, the incest is the most serious of the offences and it is a recent crime committed by you at an advanced age.  As I have said, your age cannot be a major mitigatory factor here.  Even the act against your granddaughter is a serious crime.  It is by its nature not as serious as the others, in my judgement.  It was a single event against her, but still was highly invasive and perverted.  It was premeditated.  So too the conduct upon your grandson.  You took steps such as putting a towel on the bed, and removing clothes of the children, and getting the shaving mug and cream and razor.

Sentencing considerations

29I have taken into account all of the submissions that have been made and exhibits that have been tendered before me.

30Sentencing is never an easy task, whatever some might say.  I have said often enough before that those who say sentencing is an easy task generally fall into one of two categories.  Either people who have never done it, or people who have ceased doing it.  Then there are the rest of us; that is, judges who are presently actually doing it.  Judges who strive to strike a balance in the weighting to be given to a variety of sentencing purposes and considerations, some of them competing factors to some degree at least.  Rehabilitation on the one hand.  We have on the other, the need for specific and general deterrence, community protection, denunciation, and punishment.  There is the need to make judgments as to the weighting to be placed on the various factors.  There are so many matters which must be taken into account by a court.  I have to take into account the maximum penalty.  I have to pay regard to current sentencing practices and to the impact of the given crime.  I must consider your prospects of rehabilitation.  You must be punished for your crimes, justly and proportionately.  That is obviously an important purpose of sentencing.  This court must denounce your conduct.  Likewise, that is also important.  You have committed a serious crime upon your daughter and then serious crimes upon your grandchildren.  You really should be totally ashamed of yourself for engaging in these acts, and yet you are not.

31I must consider the protection of the community.  It still has a real role to play here, given the nature and chronology of your offending and your current lack of insight.  You must also be deterred; that is, you must be dissuaded from ever committing such crimes as these ever again.  That purpose, specific deterrence, also still has a role to play here.  That is so, despite your lack of criminal record and past excellent employment record.  Of course I accept that you are getting older, are in poor health, and that you are unlikely to be left with any children from within your family ever again.  Also, that my sentence will have some role at least in deterring you.  However, I must still give specific deterrence some weight as your counsel concedes.  You present currently as a moderate/high risk.

32This court must also seek to deter others who might be minded to commit this type of offending.  That purpose, which us lawyers refer to as general deterrence, is a highly relevant purpose of sentencing in this sort of case.  The courts, by the sentences passed in this kind of case, must signal to others that such conduct as yours will not be tolerated and will be punished sternly by the courts.  The courts have a role in sending a strong message to those who might think it open to sexually exploit children.  The Court of Appeal has said that the fact of this type of offending taking place at all underlines the importance of sentences being imposed which demonstrate, to the community and to any person who might contemplate sexual offending against a child, that such offending is and should be unthinkable and not pursued.  The President of the Court of Appeal observed in July 2015 that if it were better understood that offending of this kind would ordinarily attract significant terms of imprisonment, then perhaps the County Court would not be dealing as often as it has to with child sexual offences.  See the case of Sadrani [2015] VSCA 202.

Serious offender status/totality

33You fall to be sentenced as a serious sexual offender in relation to the final three charges upon which sentence is imposed.  The first two prison sentences imposed will qualify you for those serious offender considerations.  Under the serious sexual offender provisions within the Sentencing Act 1991, unless I otherwise direct, the sentences passed upon you for those last three charges would be served cumulatively upon each other and upon the other sentences imposed. See section 6E of the Sentencing Act 1991. Additionally, for those matters where you are so sentenced as a serious sexual offender, I must regard the protection of the community as the principal sentencing purpose. See section 6D.

34I can impose a disproportionate sentence in relation to those charges to achieve that purpose, but I make clear that I do not do so here. I will pass only proportionate sentences. As to the provisions of section 6E and the presumption of cumulation, I cannot just ignore that provision. I must give weight to this statutory modification. See DPP v HPW. 

35Serious offenders are judged to be in a special category of offenders.  See Beyer v R [2011] VSCA 15 and R v RHMcl [2000] 203 CLR 452. Leaving aside for a moment the serious offender provisions, there would be a need as a matter of normal principle to cumulate portions of the sentences here. This was not one single criminal episode committed upon a single victim. That is not what I am dealing with at all. Firstly, there are three separate victims here. There are differing acts and differing time frames. There are of course some acts where there is a very close temporal link, as I have described when dealing with the factual basis of the indictment. For instance, two of the three acts the subject of Charge 2 occurred on the same day as the incest.

36I have to consider the presumption in favour of cumulation for the sentences passed upon you once you are a serious offender and the extent to which I otherwise order concurrency.  I have to give weight to these provisions and to the nature of your offending.  It is clear from the authorities that I still must pay regard to the principles of totality, as modified by this rule.  

37I have given consideration to the overall effect of the sentences imposed by me.  In some instances, I have "otherwise ordered" to provide for significant concurrency to pay regard to the principle of totality.  I have engaged in a last look at the overall effect of these sentences to ensure that the overall effect is consistent with your overall criminality and is not crushing upon you. 

Sentence

38I turn now to the ancillary orders.

Forensic sample

39Application is made for a Forensic Sample Order. It is not opposed, and I have signed that order and pronounce it now. I order pursuant to section 464ZF(2) of the Crimes Act that you undergo a forensic procedure for the taking of a scraping from your mouth in accordance with the provisions of the Crimes Act, until a sample of sufficient standard is obtained for placement on the database.  I am satisfied on all the circumstances that the making of the order is justified, owing to the seriousness of the circumstances of the offending, the fact that the order is either consented to or not opposed, and that I judge it to be in the public interest.  I have signed that order.

40I have to tell you that, notwithstanding your lack of opposition to the order, if at the time the request is made you are then not consenting to the taking of a mouth scraping, and that is what I am authorising at this stage, then the police may use reasonable force to enable that forensic procedure to be conducted.  I have authorised only a taking of a scraping from your mouth.  It should not be an invasive procedure.  It is fairly straightforward, but as I say, reasonable force can be used.  No doubt, if it provided any sort of difficulty, the authorities would be back before me making application for a blood sample, which at this point I have not authorised.  But I have signed those orders.

41Sending a person to prison is always a disposition of last resort, and for good reason.  As your counsel correctly concedes, there is of course no alternative here.  That is because your offending is too serious and must be rewarded with a sizeable term of imprisonment and the fixing of a non‑parole period.

42I think, in the circumstances, I will have you remain seated down in the dock.  I am going to sentence in relation to Charge 4 first, and the reasons for that will become obvious.

43On Charge 4, incest (representative), I convict and sentence you to four years' and nine months' imprisonment.  I have sentenced in that matter first, as I obviously judge it to be the most serious offence.  It is the base sentence.  It seems to me at least that there are practical difficulties in terms of the serious offender provisions and cumulation in the event that I sentence on that matter as the fourth sentence imposed by the court, which is what I would do if I sentenced in order of the charges on the indictment.  I would have to otherwise direct in relation to that matter to some extent, whilst at the same time cumulating other parts of the other sentences upon that base sentence.  I find that almost unworkable.  So I have pronounced sentence in relation to that matter first because it is the base sentence.

44On Charge 1, which is the rolled up or composite offending against your own daughter, I convict and sentence you to two years' imprisonment.

45On Charge 2, the representative indecent act charge upon your grandson, again I convict and sentence you to two years' imprisonment.

46On Charge 3, another representative indecent act charge relating to your grandson, I convict and sentence you to 18 months' imprisonment.

47Finally, on Charge 5, the specific indecent act charge relating to your granddaughter, I convict and sentence you to 14 months' imprisonment.

48I now need to make orders for cumulation, as well as orders expressing the extent of concurrency for the later sentences.

Cumulation

49I turn firstly to the order for cumulation.  As I have said, the base sentence is the four years and nine months imposed on the charge of incest.  I direct that 12 months of the sentence imposed on Charge 1 be served cumulatively upon the base sentence and other part cumulative sentences.

50It follows then that on Charge 2, 3, and 5, you have been sentenced as a serious sexual offender, and rather than pronounce cumulation, I am obliged under the Sentencing Act for those matters to note the extent of concurrency; that is, the extent to which I otherwise order under the provisions of section 6E of the Sentencing Act.

Section 6 E: Otherwise order concurrency

51I direct then that 20 months of the sentence imposed on Charge 2, 13 months of the sentence imposed on Charge 3, and eight months of the sentence imposed on Charge 5 are to be served concurrently with the base and other sentences. My otherwise ordering concurrency in this way under section 6E produces therefore a further cumulation of 15 months' imprisonment upon the base and part cumulative sentence. This results therefore in a total effective sentence of seven years' imprisonment.

NPP

52I direct that you serve a period of four years and eight months before becoming eligible for release on parole.

Section 18

53You have served seven days in custody already and that period will be declared as a period already served pursuant to this sentence.  It will be noted in the records of the court.

Serious offender status

54You have been sentenced as a serious sexual offender in relation to Charges 2, 3, and 5.  That likewise will be noted on the court record.

Sex Offenders Registration Act 2004

55I deal now with the Sex Offenders Registration Act. You have been sentenced by me in relation to various offences that trigger reporting obligations for life upon your release from prison. That is accepted to be the position by your counsel, so I do not see the need to set out the way in which the provisions are actually triggered. You must comply with your reporting and other obligations under the Sex Offenders Registration Act 2004 for the remainder of your life. I will shortly have handed to you a document that explains your many obligations under that Act. You really need to acquaint yourself with it in due course. Initially, I will simply have you sign that document to indicate that you have received it.

56What you will see when you read the ins and outs of the document is that the Sex Offenders Registration Act 2004 imposes a number of conditions upon you, including impediments to future employment in a variety of areas. There are meaningful impediments to your future contact with any children. You really must familiarise yourself with these obligations, as any breach of the Act or breach of your reporting obligations under the Act, is itself a serious criminal offence punishable by a term of imprisonment.

Section 6 AAA

57As I have told you, I have reduced the sentence courtesy of your guilty pleas.  I now disclose the dimensions of that reduction as I am obliged to do.  Had you pleaded not guilty and been found guilty of these offences following a trial or trials, I would have sentenced you to nine and a half years' imprisonment.  I would have fixed a non‑parole period of seven years.  That declaration made pursuant to section 6AAA is to be noted in the court records.

58Are there any other matters that I have overlooked, Ms Dipietrantonio?

59MS DIPIETRANTONIO:  Not that I can see,  Your Honour.

60HIS HONOUR:  Mr Fitzgerald?

61MR FITZGERALD:  No, I do not think so.

62HIS HONOUR: All right. Now, Mr Fitzgerald, you have seen these documents I am sure before; that is, the notice of reporting obligations pursuant to the Sex Offender Registration Act. It is a very lengthy document. It goes into a lot of the requirements under that Act. It is not contemplated that he is going to sit there now and read it all now. It would be impossible to do that. He is simply acknowledging, by his signature, receipt of the notice under the Act. You understand that?

63MR FITZGERALD:  I do understand that, and I can indicate to him that I will provide more full advice to him about his obligations at a later stage.

64HIS HONOUR:  Yes.  Well, I will have that come down then with my associate.  That can be signed and he will get a copy of that, and maybe you go down with my associate as well and we will have that dealt with.  Then I will sign it as well.

65MR FITZGERALD:  Yes, Your Honour.

66HIS HONOUR:  All right.  Well, I have signed that order.  Just remain seated, Mr Reynolds.  Do you acknowledge that you have received that notice of your obligation under the Sex Offenders Registration Act?

67ACCUSED:  Yes, Your Honour.

68HIS HONOUR:  Yes, thank you.  All right.  Well, that will come down to you.  You will have that to take with you.  As I say, you will need to look at that very carefully in due course.  It is an important matter for you to understand.  All right, let me just make a further enquiry then.  I dealt with custody management issues the other day, Mr Fitzgerald.  Unless there is some reason to, I do not see any need to say anything further in that area.

69MR FITZGERALD:  No, Your Honour, that was a comprehensive notation.  Thank you, Your Honour.  I can indicate that Mr Reynolds saw the on‑site medical staff and he has been receiving his medication appropriately.

70HIS HONOUR:  Right.  Well, I am glad to hear that.  All right.  Now, look, I have been in your position and likewise yours, Ms Dipietrantonio.  The serious offender provisions and the way one swings from cumulation to concurrency and extent of concurrency, it is a very unwieldly concept at least in terms of pronouncing sentences, especially where the greatest sentence is a sentence passed upon an offence that, if I followed the form of the indictment, would be a serious offence.  So that is why I have done what I have done.  I did not ask; I should have asked each of you.  In terms of the mathematics of it, do you understand the individual sentences?  So it was four years' and nine months' imprisonment on Charge 4, which was the incest.

71MS DIPIETRANTONIO:  Yes, Your Honour.

72HIS HONOUR:  It was two years on Charge 1, two years on Charge 2, 18 months on Charge 3, and 14 on Charge 5.  I then cumulated 12 months of the sentence imposed on Charge 1 upon the base it gets to five years and nine months to that point.  I have switched then to the concept of otherwise ordering the extent of concurrency, as I am obliged to.  When I then pronounced those sentences, I am not sure you necessarily followed.  So it was 20 months' concurrency for the 24 months on Charge 2.  It was 13 months' concurrency of the 18 months on Charge 3.  It was eight months of the 14 months sentence running concurrently six, therefore being cumulated.  So the total effect of those orders for concurrency, which is the way they have been announced, is to provide for an additional 15 months upon the base and part cumulative sentence.  By my calculation, it arrives at a total effective sentence of seven years' imprisonment.  So you understand the way in which I have pronounced those orders, and is the mathematics correct at least?

73MS DIPIETRANTONIO:  Yes, Your Honour.

74MR FITZGERALD:  Yes, it is correct, Your Honour.

75HIS HONOUR:  Yes, all right.  As I say, there is then the non‑parole period of four years and eight months.  All right?

76MS DIPIETRANTONIO:  Yes, Your Honour.

77HIS HONOUR:  I will sign that order.  All right.  Well, I have signed that order then.  So are you going to go down and see him downstairs, Mr Fitzgerald?

78MR FITZGERALD:  I will do that now, Your Honour, yes.

79HIS HONOUR:  Yes, all right.  Well, Mr Reynolds, Mr Fitzgerald will come down and see you downstairs in the cells.  So that completes the matter.  So Mr Reynolds can be removed please.  Yes, all right.  Thanks for your assistance, each of you.  I have got a trial at 12.30; I will come back onto the Bench at 12.30.

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