Director of Public Prosecutions v Riley (a pseudonym)

[2018] VCC 296

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

AT MELBOURNE

CRIMINAL JURISDICTION

CR-16-00356

DIRECTOR OF PUBLIC PROSECUTIONS

v

LINCOLN RILEY (A PSEUDONYM)[1]

SANDRA GIBSON (A PSEUDONYM)

[1] To ensure that there is no possibility of identification, these sentencing reasons have been anonymised by the adoption of a pseudonym in place of the names of the parties.

---

JUDGE:	HIS HONOUR JUDGE STUART
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	23 February 2018
CASE MAY BE CITED AS:	DPP v RILEY (a pseudonym) & Anor
MEDIUM NEUTRAL CITATION:	[2018] VCC 296

EX TEMPORE REASONS FOR SENTENCE

---

Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Coombes	Office of Public Prosecutions
For Accused Riley	Mr T. Danos
For Accused Gibson	Mr H. Rattray

HIS HONOUR:

1Lincoln Riley,[2] on 2 November last year a jury of 12 found you guilty of seven charges of sexual penetration of a child under the age of 16, being Charges 1, 2, 3, 5, 7, 8, 9, as well as two charges of an indecent act with a child under the age of 16 being Charges 4 and 6. 

[2] Lincoln Riley is a pseudonym.

2Sandra Gibson,[3] in a separate trial, a jury of 12 found you guilty of three charges of sexual penetration of a child under the age of 16 being Charges 1, 3 and 5 and two charges of indecent act with a child under the age of 16, Charges 2 and 4.

[3] Sandra Gibson is a pseudonym.

3The relevant maximum penalties are set out in the chart with respect to each of you for each of the offences.  I will return to those maximum penalties in due course. 

4The circumstances of the offending, firstly in relation to you, Mr Riley, are that you are the uncle of Stacey Riley.[4]  The offending which concerns you alone occurred between 13 January 2004 and 12 January 2009.  There was further offending involving both you and Ms Gibson which occurred at a time between 1 January 2010 and 31 December 2011.  You, Ms Gibson, were at that time the partner of Lincoln Riley. 

[4] Stacey Riley is a pseudonym.

5Earlier, a Ms Sullivan,[5] who was also a partner of Lincoln Riley, was involved in an incident, which I will come to, between 1 January 2007 and 31 December 2008.

[5] Ms Sullivan is a pseudonym.

6Your victim, Stacey Riley, is currently 19 years of age.  At the time of the commencement of the offending she was but five years of age.  The last incident occurred when she was a young girl of 12.  At the time of your offending, Mr Riley, you were aged between 35 and 43 years.  At the time of your offending, Ms Gibson, you were between 32 and 33 years of age.  Thus both of you, worldly and well-matured adults, sexually abused this girl.

7You, Lincoln Riley, came to live at your niece's home as a result of your diabetes. The consequences of this illness were far-reaching for you, and meant that your sister, Amanda Riley, was prepared to take you in to her home where she lived with her children.  You initially lived at the main bedroom at the front of the house but later a granny flat was built at the rear of the house for your benefit and you moved in there.  The offending which you engaged in occurred both in the main house and in the granny flat.  Your offending, Ms Gibson, occurred in that granny flat.  However, in this home, all appeared normal - but it was not.

8I turn to the offending that involves you solely, Lincoln Riley.  The first two charges of sexual penetration of a child under the age of 16.  As I have mentioned, this offending occurred when your niece was five years of age and in grade prep at school.  You called her into your bedroom saying you wanted to check if she was wearing underwear.  On that pretext she went into your bedroom.  You were on the computer.  She was wearing a skirt and a school t-shirt.  You pulled her skirt down to check whether she was wearing underwear and she was not.  You then told her to get onto your bed, which she did.  She lay on her back and you inserted your penis into her vagina, causing her pain.  That is Charge 1.

9She describes your private part as being hard.  You stopped penetrating her vagina with your penis and then proceeded to insert your fingers into her vagina.  That is the second charge of sexual penetration of a child under the age of 16.  This conduct was remarkable for its brazenness as other people were in the house when this incident occurred.  This incident was referred to during the course of the trial as being “the first time she can recall”. 

10A second incident occurred which was described during the course of your trial as the “oil incident”.  This was also a charge of sexual penetration of a child under the age of 16.  By this time you had moved into the granny flat or bungalow at the rear of the property.  Your niece was then aged eight years and in Grade 3.  She was lying on your bed.  She was unsure how she came to be in your bedroom of the bungalow.  There was only a sheet on the bed and she was lying on her back with her knees up.  You were kneeling on the floor next to the bed.   You were clothed.  You had oil on your fingers and you touched her vagina and inserted your fingers into her vagina, making her feel uncomfortable and sick. 

11That third incident results in you being classified as a serious sexual offender for that offence and all subsequent offences on the indictment.  The maximum penalty for each of those offences, 1, 2 and 3, is 25 years' gaol thereby demonstrating parliament's view of such offending as being grave.

12I turn from those three charges on those two incidents to the fourth charge involving you alone, Mr Riley.  That incident was described as the “whipped cream incident” and involved the participation of another of your female partners, Ms Sullivan.  At the time of this incident Stacey Riley was eight or nine years old when she went into the bungalow to have dinner with you and Ms Sullivan.  You, Mr Riley, made whipped cream after dinner and the complainant put this on Ms Sullivan's neck and in her hair, which was done as an innocent game.

13However all three of you then went into your bedroom with Ms Sullivan removing her shirt and bra exposing her breasts.  You placed the whipped cream on Ms Sullivan's stomach and breasts in front of you niece.  You told her to touch Ms Sullivan's breasts, which she did, drawing pictures on her stomach and bare breasts.  That is the subject of Charge 4, indecent act with a child under 16.  That charge and all the following charges as they relate to you alone and you with Ms Sullivan, carry with them a maximum penalty of ten years' imprisonment. 

14After this incident Ms Sullivan got off the bed and had a shower to remove the whipped cream from her breasts.  Returning from the shower and under your instruction, further sexual acts then occurred, which are, as I have said, irrelevant for my purposes.  Following this incident your niece got dressed and went back to the main house.  She was, as she recalls, attending primary school and was in Year 3 or 4.

15I now turn to the final incident which relates to both of you.  It was described during both trials as the “last time she can recall”.  Stacey Riley was around 11 or 12 years' of age at the time, more likely 12, when she was sleeping in your bedroom.  The two of you were in the lounge room of the bungalow.  Both of you went into the bedroom and removed your clothes.  Her clothes were then removed.  You, Lincoln Riley, then got on top of her and inserted your penis into her vagina.  That is Charge 5 in relation to you, sexual penetration of a child under the age of 16.

16In relation to you, Ms Gibson, this penetration was Charge 1, sexual penetration of a child under 16.  Whilst Lincoln Riley was penetrating his niece, with his penis, you touched her hair, kissed her and told her to be quiet as she was crying.  You, Mr Riley, told her to be quiet. 

17After stopping your penetration of her vagina, the two of you had sexual intercourse in front of her.  That is Charge 6 in relation to you, Mr Riley and Charge 2 in relation to you, Ms Gibson.

18You then, Lincoln Riley, inserted your penis a second time into her vagina whilst she was lying on her back while you, Ms Gibson, were present.  That relates to Charge 7 in relation to Mr Riley and Charge 3 in relation to you, Ms Gibson.

19Whilst you were penetrating her that second time you, Ms Gibson, were touching Mr Riley’s head and back.  You also touched his niece's breasts.  That touching of the breast is the subject of Charge 4, indecent act with a child under 16 in relation to you, Ms Gibson.

20You, Ms Gibson, then fell asleep and whilst asleep you Mr Riley inserted your penis for a third time into your niece's vagina.  That is Charge 8, which relates solely to you, Mr Riley, sexual penetration of a child under 16.

21At some time during the night you, Ms Gibson, inserted your fingers into Stacey Riley’s vagina and you, Mr Riley, were kissing Ms Gibson as she did this.  That is Charge 9 in relation to you, Mr Riley, and Charge 5 in relation to you, Sandra Gibson.

22Later that night the complainant got up and slept in the lounge room of the bungalow.  The three of you were naked throughout this whole incident. 

The complainant stated that your penis was hard when you inserted it into her vagina on each occasion. 

23When interviewed by police you, Lincoln Riley, said on 22 October 2014 that no sexual misconduct occurred whatsoever and, in effect, stated that you were incapable of penetrating your niece with your penis as you were impotent because of your diabetes.  You, Sandra Gibson, likewise emphatically denied any sexual misconduct whatsoever expressing your horror of the allegations put to you and observing you had a daughter of not dissimilar age to the complainant. 

24I shall return to the circumstance of this offending shortly but it is necessary at this point in time to recount the consequences of your offending.  Though the complainant had complained to her mother about your conduct, Mr Riley, nothing was done and so it lay until 6 November 2013 when Stacey Riley rang a counselling service and spoke to a Ms Baubel.  That transcript was tendered as part of your trial Mr Riley as Exhibit 11.  It is worth recounting some parts of that spontaneous exchange in order to understand the effects that your offending had:

Ms Riley: "So lately I have been very emotionally distressed  I am like the middle child so either get ignored like I don't exist or I get yelled at and blamed for everything and school is no better a lot of people hate me".

Baubel: Hmm so at home and at school you get treated badly :(, Tell me about being emotionally distressed?".

Ms Riley: "Well I year seven some kids told me a good way to release anger is to self harm AKA cutting punching etc so I've been cutting and punching myself to release all my anger and I have tried to kill myself a few times I don't feel like trying any more".

Baubel: "Sounds like you have been going through a really stressful time Stacey, Can you tell me about the times you tried to kill yourself?"

Ms Riley: "The first time I wrapped a scarf around my neck and my face went numb but I panicked and pulled it off I tried to hang myself but the rope thing snapped and I fell on my chair".

Baubel: "Does anyone else know about this Stacey?"

Ms Riley: "No I have a hard time trusting people".

Baubel: "What made you decide to open up about this tonight?"

Ms Riley: "I realised that if I leave it all unspoken then I could go mental or continue to cry and not get it out and so I can walk away from this feel like all the weight is off my shoulders".

25Later the exchange continues: 

Baubel: "So you have a plan to kill yourself or your uncle, Tell me about the thoughts to kill your uncle Stacey".

Ms Riley: "He raped me when I was 7 until I was about 12 or 11

he ruined my childhood he deserves to die he can't get away with it".

Baubel: "What your uncle did is terrible Stacey.  Have you told anyone about this before?"

Ms Riley: "I tried to tell my mum when I was little but she ignored me

she always seems to think that everything I do is for attention".

Baubel: "So what you are saying is that nothing has been done about your uncle raping you, have I got that right?"

Ms Riley: "Yes that is correct".

Baubel: "How do you feel about that Stacey?"

Ms Riley: "I never thought anything would be done because he had kidney failure so no-one can prove that I'm telling the truth and it's sort of hard to accept that I have to live my life keeping everything quiet and he lives in a small flat in our backyard and comes in to talk to us it makes me feel uncomfortable and makes me angry that he can walk in and act like everything's fine and get away with it I'm 14 no one would ever believe me anyway.  I just gave up after a couple of year like it's not worth fighting for I just deal with it and ignore it hoping that one day I will forget what happened".

26I interpolate to point out that two juries of 12 have believed the complainant in all aspects of her allegations.

27Returning to the consequences as revealed in the victim impact statements.  First, from the victim impact statement of Stacey Riley, which became

Exhibit 1 on the plea.  She writes about a number of consequences, including lifestyle effects, dropping out of school, several suicide attempts, drug and alcohol issues, homelessness, running away from home, eating disorders, insomnia, social anxiety.  Psychological effects include borderline personality disorder, post-traumatic stress disorder, insomnia, anxiety and depression.  To quote the victim when she describes how these impacts might change her life into the future:

"More prone to drugs and alcohol, constant thoughts of suicide, still spiralling further into depression".

28I have read and looked at the extracts from the notebook and the pictures that Stacey Riley has drawn.  They show her as a sad and isolated young woman.

29The consequences are further elaborated upon in the victim impact statement of Amanda Riley, her mother, and your sister, Mr Riley.  

30She writes:

"I no longer sleep for long periods waking startled several times a night to check my children sleeping and safe.  All the doors and window locks have been changed but I check them every few hours to make sure they are locked.  All my children have changed schools and go to different ones.  So I have supplied photos of the accused and a copy of the intervention order, so they know to keep them safe until I get there and allow no one else to pick them up".

31Later, she continues:

"But I lost a child.  She may be alive but she's not the child I had and probably never will be. 

She'll never finish school. 

She missed her Formal, Deb, and Graduation. 

She has felt like an outsider in her own home not able to talk to anyone about what happened or why she has a rollercoaster of emotions. 

She has horrible flashbacks and feels unsafe in the only home she's ever known".

32Your other niece, Emma Riley, elaborates upon this saying, among other things:

"It has been very difficult to study at home because of Stacey’s mood swings (which I do not blame her for).  I have broken down crying multiple times at school which was hard to explain to my classmates as they do not know the current events.  I have also felt very guilty because I was nice to him and cleaned his house when behind closed doors he was abusing my sister even though I didn't know at the time".

33Your other nephew, Tyler Riley, writes:

"A goodnights sleep was a rare occurrence with my sister Stacey, staying up most nights fearing someone would come for her while she slept".

34It is true the consequences of this offending have been profound, but perhaps they are better described as catastrophic. 

35The depravity of the conduct that you engaged in, Lincoln Riley, is particularly revealed in Charges 1 and 2, when you sexually penetrated your niece when she was five years of age with your penis.  The depravity of the conduct of both of you in the last incident is breathtaking.

36There is other sexual misconduct alleged throughout the time period involved in your offending Mr Riley.  That was led as evidence of context.  I wish to make it plain that you are not to be, in any way, sentenced for any other sexual misconduct but solely in relation to the charges that you have been found guilty of.[6]

[6] Paragraphs 36 and 37 appeared after paragraph 11.

37Likewise in your case, Ms Gibson, there is other sexual misconduct that you were alleged to have engaged in that was led likewise as evidence providing a setting or context in which the offending alleged was considered.  I repeat you are not, in any way, to be sentenced for any other sexual misconduct and will only be sentenced by me in relation to the matters which you have been found guilty on your indictment.  The consequence, of course, is that that alleged sexual activity results in a defence submission in mitigation not being able to made, namely the offence was isolated for it was not.

38I now turn to identify what I see as the aggravating features as they relate to you, Mr Riley, some of which I have already referred to. 

1.    Your victim was your niece. 

2.    Your offending commenced when she was but five years of age and continued for a period of about eight years until the last incident when she was 12 years of age. 

3.    It was your victim, your niece, who stopped your offending by being offensive, obstreperous towards you and isolating herself not only from you but also from her own family in her own home. 

4.    You took advantage of the generosity of your sister in taking you into her home only then to molest her daughter. 

5.    You used your position of trust as a brother to your sister and an uncle to your niece.  To use your niece, a vulnerable young girl, as an object for your sexual gratification. 

6.    The offending occurred in her own home and continued in the bungalow built for your benefit in the backyard of her home. 

7.    Your offending was brazen as instanced by first incident, Charges 1 and 2, occurring in your bed in the main bedroom of the main house whilst other family members were present. 

8.    Two of your partners were involved with you to commit the offences for your sexual gratification.  Charge 4 in relation to Ms Sullivan and Charges 5, 6, 7, 8 and 9 in relation to the last incident involving Ms Gibson. 

9.    In both cases that offending, and in particular, “the last time she can remember”, involved acts of depravity committed against your niece. 

10. You had no regard to the consequences of your offending. 

11. The consequences of your offending have been profound, if not catastrophic, and will continue to be so.  Your niece has no sense of security even in her own home.  She even feared for the safety of her younger sister in relation to you.  She has engaged in self-harm and has attempted suicides on a number of occasions, and finally; 

12. You have shown no insight and have no remorse for what you did.

39I turn to the aggravating features in relation to you, Ms Gibson. 

1.    Your victim as well known to you as a result of your numerous visits to Mr Riley’s granny flat.  At the time of the offending you were a mature aged woman aged between 32 and 33 and had two children of your own. 

2.    As such your victim, when she came to the granny flat, ought to have expected you to be a responsible adult.  You were not.  You had an obligation to protect her, you did the opposite.

3.    You did so by your active participation in depraved sexual conduct, the subject of the charges on indictment in relation to you.  This involved a gross breach of trust in relation to a 12 year old girl. 

4.    This offending occurred in the granny flat but metres away from the main home of the complainant.

5.    This offending was brazen occurring at night when her family were in the main home with the following morning her mother and one of the siblings coming to the granny flat to find her still there. 

6.    You joined with Mr Riley to commit these offences on the last occasion as if a team. 

7.    You actively participated in acts of depravity as exampled by your digital penetration of your victim, Charge 5.

8.    You have no regard to the consequences of your offending. 

9.    The consequences have been profound, if not catastrophic, and finally;

10. You too have no insight and demonstrated no remorse.

40General deterrence, deterring others from such conduct, is the primary sentencing factor I take into account.  Our community must support children who are victims such as this.  It must be made plain that those who conduct themselves in the way in which the two of you have can expect to receive stern punishment with the aim of deterring others from such offending.  I will return to other sentencing principles later in my sentencing remarks but at this stage I turn to matters personal to each of you.

41You, Lincoln Riley, were born in 1968 and are now 49 years of age. 

Your parents separated when you were 26 years of age and you have not had any contact with your father since and no contact with your mother since 2006.  Your father worked on the railways and was a drinker.  Your mother was described as a hard task master.  You attended primary school and concluded your secondary education to Year 10.  You were kicked out of home and you have since looked after yourself until the decline in your health, which I will come to, in about 2005/2006.

42You have an excellent work history commencing, for a short time, working for a shoe company.  You then worked in installation of car accessories, a furniture factory and then installing mobile phones into vehicles.  Finally in the late 1990's you commenced your employment in the security industry which continued until early 2006 by which time you had returned to Victoria in order to renew your security licence but due to your ill health, in particular your diabetes, you were unable to continue in that work.  You are now legally blind and have a guide dog.

43You have no criminal history and an excellent work record and you are entitled to bring these matters to your credit and I take them into account. 

44Turning more particularly to other aspects of your personal background, there is a medical report from Dr Christopher Webster dated 2 February 2018 which became Exhibit LR1.  You had, by that date, been in custody since your conviction.

45In the first paragraph Dr Webster states:

"I first consulted with Lincoln on Wednesday 11^th March 2015.  During this consultation I learned that Lincoln was the recipient of a double organ transplant - kidneys and pancreas - in August 2014.  The purpose of this procedure was treatment of Lincoln's end-stage kidney failure and insulin-dependent diabetes.  Lincoln presented to me as he required prescriptions for medication to prevent rejection of his transplanted organs and to prevent infections".

46A little later, he continues:

"In terms of daily suffering Lincoln's main concerns were limited to mobility due to the reliance on walking on public transport, chronic ulceration of both is his feet complicated by accidental trauma secondary to visual impairment and the absent sensation in leading to two separate amputations of toes, and lowered mood secondary to poor physical health and a profound sense of loss. Despite facing daily challenges Lincoln maintained a commitment to bettering his condition in life".

47Later, he continues:

"Lincoln was determined to keep his right big toe from suffering the same fate and I put a lot of effort into saving this toe.  During his recent court proceedings I was not able to attend to the ongoing care of Lincoln's toe as frequently as I would have preferred and I noticed on the occasions that I did examine the toe that there was a precipitous decline in his condition.  Sadly, I was informed last year that Lincoln was ultimately forced to have the right big toe amputated. 

Following the pancreas transplant Lincoln did not require insulin to control his blood sugar anymore and effectively his diabetes was cured.  However, the damage to his eyes (diabetic retinopathy), nerves (the diabetic neuropathy), and blood vessels (diabetic vasculopathy) remained despite being retarded by the correction of the elevated blood sugar level there will be ongoing deterioration in the extent of damage of these bodily tissues".

48Later, he continues:

"It is of great concern that within a fortnight of him being incarcerated Lincoln's right big toe condition deteriorated to the point of requiring amputation.  Extrapolating this physical decline to Lincoln's body at large indicates that any term of imprisonment represents significantly increased risk of health deterioration. 

If Lincoln's health is managed well I would estimate that his life expectancy could extend into the eighth decade.  Without appropriate health care Lincoln's life expectancy could be reduced to as little as several years or less.  The most likely potential fatal event would be overwhelming sepsis due to infection, kidney failure second to organ rejection, or cardiac arrest or stroke due to unrestrained progression of arterial vascular disease".

49It was put by Mr Danos on your behalf that this represented a considerable burden on you, greater than healthy persons who are in custody.  I accept that submission and there will be a significant moderation of the sentences that I would otherwise impose.

50Turning to how you have interrelated with other members of the community,

I have received a number of testimonials and I will quote a selection of passages from them.  In a letter from Steven Harper,[7] which became Exhibit LR3, he recites that as a brother-in-law - he says:

"Lincoln and myself have always got along fine as we both have an interest in motorsport and cars.  Lincoln has always been independent and was a hard worker putting in long hours doing security work until his health deteriorated to the point he was unable to work". 

[7] Steven Harper is a pseudonym.

51His wife, Jane Harper,[8] in what became Exhibit LR4, writes:

"Lincoln has always been in our lives and he has always been available to our family, he has helped my parents taking care of myself and my two brothers when asked, more times that I can remember.  Lincoln is someone I have always looked up to, he has always had stable employment being a security guard until his health stopped him from working". 

[8] Jane Harper is a pseudonym.

52Later she continues:

"Lincoln has always been the ‘cool uncle’, the favourite family member, the most reliable/dependable and someone I have always looked up to".

53She concludes:

"No matter what the outcome of today's sentencing my family and I will stand by Lincoln and offer any and all support possible".

54In the letter of Bridgette Foster,[9] which became Exhibit LR5, she writes:

"I have known Lincoln Riley for over 12 years, he is an honest, amazing friend.  He is always the first person to put his hand up to help out whenever anyone needs it regardless of what has going on his life and how he is feeling with his medical & health issues.  There are very few people I call true & trustworthy friends but Lincoln I am proud to say is one of them, always happy to have a chat anytime day or night over the phone or a coffee.  To watch him go from a hardworking person to how he is now breaks my heart but he has taken it all in his stride and has very rarely complained even when he lost his eye sight and had a double transplant, he is an inspiration not only to me but to all his friends. 

I could sit here typing for hours about how honest, trustworthy & reliable he is, I am honoured to call him a friend".

[9] Bridgette Foster is a pseudonym.

55Mandy Crighton,[10] in her letter, being Exhibit 6, writes:

"He is always true gentleman to everyone he meets". 

[10] Mandy Crichton is a pseudonym.

56Finally, Edward Neale,[11] in Exhibit LR7, writes:

"I've known Lincoln Riley for 7 years, we met through mutual friends.  I found him to be a true friend, kind, caring, always there helping others out despite his own medical and health issues.  It is a rare quality these days to find someone who is so honest and caring and a great mate, always the first person to put his hand up to help up when needed".

[11] Edward Neale is a pseudonym.

57Those testimonials, combined with the absence of criminal history speak to matters that I must, and do, take into account in your favour.

58Turning to you, Ms Gibson, you too have no criminal history.  You are a 40 year old woman.  You have two children aged 20 and 18 years of age both living at home.  Also living at home is your former husband who has been looking after your children in your absence since your conviction.

59You were born in country Victoria, your mother was engaged in home duties and your father worked full time in management.  Both your parents have since died.  You are the second of four sisters in that family.  Your family life was a happy and unremarkable one.

60You completed your Year 12 at the age of 17.  You then obtained retail work for a period of some 12 months before you fell pregnant with your first child.  Your husband worked on farms.  You married in 2002 and you and your husband moved out from his family's premises in 2003. 

61You had the care of your children and had another occupation for a period of time before you moved to your present address.  You have been separated from your husband but living under the same roof for several years.  Both of you have been doing shift work. 

62In 2010 you returned to further your education at TAFE and obtained a certificate for aged care in a 12 months course which you completed in 2011.  You had been working in a care facility from 2010.  Your ambition was to further qualifications and to that end you commenced a Diploma in Nursing for a period of two years from 2015 but as a result of these charges your employment was terminated.

63It was put on your behalf by Mr Rattray that in the circumstances of your separation from your two children, that is more burdensome for you and that

I ought to moderate your sentence for that reason.  I do not accept that submission.  Regrettable as it is, this is a consequence that frequently occurs when persons are imprisoned and separated from their families as a result.

64Mr Rattray submitted that there is a need for disparity in sentencing as between yourself and Mr Riley.  You are only to be sentenced in relation to the last incident as opposed to him, who is also sentenced on the other incidents that I have referred to. 

65You, differ from him as you had no familial relationship with the victim and the level of breach of trust was different vis-a-vis the two of you.  I accept that there is a need for disparity in sentencing between the two, a matter which I will return to later in my sentencing reasons.

66It was further submitted on behalf of each of you that specific deterrence, deterring you, was of little moment.  In the case of you, Mr Riley, because of the multifarious aspects of your health issues and in particular your blindness, points to specific deterrence as being of little moment.  In relation to you,

Ms Gibson, it is put differently, that because of your prospects of rehabilitation being excellent, which I accept, specific deterrence should also be of little moment.  For different reasons, I agree with those submissions.  However I do caveat those remarks, as I have indicated, neither of you have demonstrated any remorse or insight into this grave offending.

67It has further been submitted by Mr Rattray that there has been delay.  That is so but it is not an undue delay and in those circumstances such delay as there is, is in my view, of no moment in either of your cases.

68The principles that require a consideration of totality are applicable in both cases.  It is necessary for me to ensure that individually and in total, the sentences that I impose are appropriate.  A topic which I shall shortly return to.

69This offending involves offending of high moral and legal culpability.  It is necessary that the sentences imposed reflect the need for there to be just punishment and the denunciation by this court of your despicable behaviour.  I have already referred to the need, in each of your cases, for there to be stern punishment for multifarious reasons which I have endeavoured to articulate. 

70In the days since the plea I have struggled with how to properly structure the sentences in respect of each of you.  There are problems associated with the structuring of the sentences that I will articulate.

71The first problem relates to the selection of the base sentence, as the base sentence necessarily must relate to two different incidents.  In your case,

Mr Riley, the base sentence is set in relation to Charge 1, the penile penetration of your niece when she was five years of age, which has a maximum penalty of 25 years.  In relation to you, Ms Gibson, Charge 5 on your indictment of your digital penetration during the last incident, which has a maximum penalty of 10 years. In selecting Charge 5 for setting the base sentence regarding Gibson it is also necessary for there to be cumulation in relation to Charge 9 for Riley.  The end result is that in relation to Ms Gibson, she will be sentenced, as a base sentence, on Charge 5 to three and a half years.  Whereas in relation to you, Mr Riley, cumulation of only 18 months with the three and a half years will be ordered in relation to Charge 9 concerning you.

72The second problem is, in order to achieve a total sentence which is appropriate to Mr Riley not only where there are charges common to Ms Gibson but also the three previous incidents, Charges 1-4, I must make appropriate orders for concurrency including Charge 9 for Riley, which is Charge 5 in relation to Gibson.

73The third problem is that there is an additional charge of penile penetration as it relates solely to the final incident common to both Charge 8 when Ms Gibson was sleep and there is no charge in relation to her because of that fact.

74The fourth problem is the need to moderate the sentences applicable to Lincoln Riley because of the burdensomeness of his imprisonment, a matter which is not applicable to Ms Gibson.

75Finally, the fifth problem.  Because of the above there is a prospect the sentences that I impose will result in different sentences being imposed on Ms Gibson resulting in her having a legitimate sense of grievance if a heavier sentence is imposed on her than imposed on Mr Riley.  For the reasons that I have given and I do not consider that she will have a basis for such a sense of grievance.

76I have extensively investigated the mechanism of achieving what I consider to be appropriate sentences and orders for concurrency and cumulation both in relation to the charges which are common to both and the sentences in relation to Lincoln Riley only.  I do not say that the mechanisms I have used are flawless but they achieve what I consider to be, overall, the appropriate sentences both individually and in total in relation to both Mr Riley and Ms Gibson.

77The simple fact is that there are different factors that I must take into account vis-a-vis both of you in terms of gravity of offending, in terms of totality, in terms of burdensomeness of imprisonment.  To put it differently, if there are better ways of achieving my goals, I have simply not found them.

78Both of you will be registered under the Sex Offender's Registration Act 2004. 

In relation to you, Mr Riley, for life and in relation to you, Ms Gibson, 15 years.  As I have stated, in relation to you, Mr Riley, you are treated as a serious sexual offender for the purposes of Charges 3 through to 9.  In relation to you,

Ms Gibson, Charges 3 through to 5 on your indictment.  I direct that copies of the chart be provided to counsel. 

79Stand, Mr Riley.

80On Charge 1 of sexual penetration of a child under 16, I sent you to be imprisoned for seven years.  That is the base sentence.  On Charges 2 and 3, I also sentence you to be imprisoned for a period of seven years.  On Charge 4, indecent act with a child under 16 I sentence you to be imprisoned for

18 months.  On Charge 5, 7, 8 and 9, each charge is of sexual penetration of a child under 16 I sentence you to be imprisoned for a period of three and a half years.  In relation to Charge 6 of indecent act I sentence you to be imprisoned for a period of one year.

81Allowing for cumulation upon and orders for concurrency as set out in the chart, the total effective sentence in relation to you, Lincoln Riley, is 17 years and nine months.  I set a non-parole period of 13 years.  Be seated. 

82Stand, Ms Gibson.

83On Charge 5 of digital penetration of a child under the age of 16, which carries with it a maximum penalty of ten years I sentence you to be imprisoned for a period of three and a half years.  That is the base sentence.  On Charge 1 and 3, both charges of sexual penetration, I sentence you to be imprisoned for three and a half years.  On Charge 2 of indecent act with a child under the age of 16, I sentence you to be imprisoned for a period of one year.

84Allowing for cumulation on the base sentence of three and a half years, the total effective sentence is six years and nine months and I set a non-parole period of three years and nine months.  Be seated.  Pre-sentence detention,

Ms Coombes?

85MS COOMBES:  Yes, Your Honour.

86HIS HONOUR:  To yesterday?

87MS COOMBES:  It's 113 days for Mr Riley not including today and 11 days for Ms Gibson not including today, Your Honour.

88HIS HONOUR:  Pre-sentence detention is declared of 113 days in relation to Lincoln Riley and 11 days in relation to Sandra Gibson.

89MS COOMBES:  Yes.  Lincoln Riley, Your Honour, just ‑ ‑ ‑ 

90HIS HONOUR:  What did I say?

91MS COOMBES:  I think you said Gibson accidentally, Your Honour.

92HIS HONOUR:  Sorry?

93MS COOMBES:  You said Lincoln Riley I think I heard, Your Honour.

94HIS HONOUR:  Lincoln Riley.

95MS COOMBES:  Yes, as Your Honour pleases.

96HIS HONOUR:  113 days.

97MS COOMBES:  Yes.

98HIS HONOUR:  Now there are forfeiture orders and there are orders for the taking of samples, I think, Ms Coombes?

99MS COOMBES:  That's right.  Forensic samples for both Ms Gibson and

Mr Riley and the disposal only for Riley, Your Honour.  I'll hand those up.

100HIS HONOUR:  Is there anything that either parties wish to say concerning forensic samples?

101MR DANOS:  No, Your Honour.

102MR RATTRAY:  Not opposed to it.

103HIS HONOUR:  Today's date again?

104MS COOMBES:  23 February, Your Honour.

105HIS HONOUR:  What are the items that are being sought and seized

106MS COOMBES:  Your Honour, is a scheduled - sorry, if I might just have one moment.

107HIS HONOUR:  I think I know but ‑ ‑ ‑ 

108MS COOMBES:  Yes.  Your Honour, it's the exhibit list that the police have in their custody.  That includes items of clothing, the locked box, the computers, things of that nature, Your Honour.

109HIS HONOUR:  Yes.  I have averted to the difficulties in construction of the sentence and I think that if anyone tries to construct their different way, the sentences that are imposed that are common in relation to all of the sentences in relation to the last incident I think you'll soon find what I'm talking about, if different sentences were imposed.

110Now there's the sex offender registration requirements and I think I have an obligation to ensure that they are provided now ‑ ‑ ‑ 

111MS COOMBES:  Yes, Your Honour.

112HIS HONOUR:  ‑ ‑ ‑ to each Ms Gibson and Mr Riley.  Yes very well.  I hand those to respective counsel for each of Mr Riley and Ms Gibson to sign.  Whilst that is being done I wish to thank the members of the family who are present in court and everybody else who is associated with the parties for the dignified way in which they have conducted themselves this morning. 

113Whilst I am thinking of it to, Mr Maher, may I commend you for the way in which you have conducted this investigation and supported the complainant during the course of the investigation and trial process.  Yes?

114MR RATTRAY:  May I approach the dock?

115HIS HONOUR:  Certainly.

116MR DANOS:  Your Honour, of course my client won't be able to read this document.

117HIS HONOUR:  Yes, of course.  Well let me have a look at it, Mr Danos.  I think the important document is the first page and second page.  I am going to read out to you, Mr Riley, the notice that has been given to you under the Sex Offender's Registration Act. 

118It is headed "Notice of reporting obligations pursuant to the Sex Offender's Registration Act 2004.  To Mr Riley, important.  Failure to comply with these reporting obligations may result in serious penalties including a fine and/or imprisonment.  If you do not fully understand this notice you should immediately seek assistance.  As a person who has been sentenced for a registrable offence you are a registrable offender within the meaning of the Sex Offender's Registration Act 2004 (the Act).

119This means that you must report to Victoria Police within seven days of your release from custody.  This means that you must report to Victoria Police within seven days of the date of your sentence".  I think that should be crossed out. 

120So, "You must report to police within seven days of your release from custody to arrange a date and time for you to report.  You are required to contact with Victoria Police by telephone the following pre-call number, 1800 235 733.  Note, you must do this regardless of whether you are awaiting an appeal against the finding of guilt or sentenced in respect of the registrable offence or offences or against the making of a sex offender registration order in respect of the offence.  Upon telephoning this number you will be asked to leave your name, date of birth, address and phone number.  You will then be contacted by a local police member who will be your case manager to arrange a date and time for you to make an initial report.

121Attached to this document you will find, (a) length of reporting period,

(b) personal details which you must supply to your case manager when reporting initially and then annually for your reporting period, (c) supporting documentation required, (d) a change in personal details, timeframes,

(e) interstate travel, (f) international travel, (g) definitions, (h) offences under the Act and (i) acknowledgement.

122Length of the reporting period.  You will be required to comply with these reporting obligations for life".  Dated 23 February 2018" signed by me and the supporting documents lettered A-I are attached. 

123The last document is a document which contains an acknowledgement and it reads, "To the Chief Commissioner of Police - " and then there is an address given.  "I, Lincoln Riley being a registrable offender within the meaning of the Sex Offender's Registration Act 2004 acknowledged having received the following notice - " and the notice of reporting obligations, which is this that

I have been reading from, "signed.  Date of the notification, 23 February 2018" and then it will be countersigned by my present Associate.  I think that is as good as I can do, Mr Danos.  Provide that to Mr Danos, thank you.

124Ms RATTRAY:  Your Honour, if I could briefly approach my client again?  There's one ‑ ‑ ‑ 

125HIS HONOUR:  Of course.  That front page needs to be amended to delete an inappropriate ‑ ‑ ‑ 

126Ms RATTRAY:  Perhaps I'll leave that to your Associate, Your Honour.

127HIS HONOUR:  Yes.

128Ms RATTRAY:  I indicate to my client that the amendment would occur as she heard Your Honour announced it.

129HIS HONOUR:  Yes, it will be exactly the same.  It's just a matter of crossing off an inapplicable reporting condition. Now I thank counsel and instructing solicitors for the work during the course of these difficult matters.  Before I leave the Bench are there any matters for correction? 

130In due course I should add my sentencing reasons will be prepared.  There will be some changes to clarify some of the things that I said but are there any matters that need correction by way of ‑ ‑ ‑ 

131Ms COOMBES:  Not that I ‑ ‑ ‑ 

132HIS HONOUR:  ‑ ‑ ‑ correcting what I said or any omissions that occur to any counsel?

133Ms COOMBES:  No, not that I can identify, Your Honour.

134Ms RATTRAY:  No, Your Honour.

135HIS HONOUR:  Mr Danos?

136Ms DANOS:  Nothing, Your Honour.

137HIS HONOUR:  Mr Rattray?

138Ms RATTRAY:  No, Your Honour.

139HIS HONOUR:  Thank you.  Yes, remove the two prisoners please.

140Ms DANOS:  Your Honour, Mr - he hasn't signed the document.

141HIS HONOUR:  He hasn't signed the document.  Please, I need Mr Riley back please.  Mr Riley.  Sorry, Mr Riley.  Yes, can I have a look at that document first.  You will, in relation to Mr Riley, you will tick the box "involuntary refused" Madam Associate.  Yes, remove Mr Riley and Ms Gibson, thank you.

- - -

Charge	Detail	Incident	Max. Penalty	Sentence	Cumulation/ Concurrency	Additional
1	Sexual penetration of a child under 16 S 45(1) (Aged under 12 years) Class 1 offence	“First time she can recall” - inserted penis while she was lying on her back Aged 5 years	25	7 years	---	7 years BASE
2	Sexual penetration of a child under 16 S 45(1) (Aged under 12 years) Class 1 offence	“First time she can recall” - inserted his fingers after removing his penis Aged 5 years	25	7 years	2 years Cumulative	2 years
3	Sexual penetration of a child under 16 S 45(1) (Aged under 12 years) Class 1 offence	“Oil incident” - Lincoln Riley was kneeling fully clothed beside bed while Stacey Riley lay on her back on the bed with her knees up and he inserted his oiled fingers into her vagina Aged 8 years	25 SSO	7 years	5 years Concurrent	2 years
4	Indecent act with a child under 16 S 47(1) Class 2 offence	“Whipped cream incident” - told Stacey Riley to touch breasts of Sullivan (Stacey Riley then drew pictures on stomach and breasts of Sullivan using whipped cream) Aged 8-9 years	10 SSO	18 months	12 months Concurrent	6 months
Charge	Detail	Incident	Max. Penalty	Sentence	Cumulation/ Concurrency	Additional
5	Sexual penetration of a child under 16 S 45(1) (Aged between 12 and 16 years) Class 1 offence	“Last time she can recall” - got on top of Stacey Riley and inserted penis into vagina (In company of Gibson) Aged 12 years	10 SSO	3 ½ years	24 months Concurrent	18 months
6	Indecent act with a child under 16 S 47(1) Class 2 offence	“Last time she can recall” - had sex with Gibson in front of Stacey Riley (In company of Gibson) Aged 12 years	10 SSO	1 year	9 months Concurrent	3 months
7	Sexual penetration of a child under 16 S 45(1) (Aged between 12 and 16 years) Class 1 offence	“Last time she can recall” - inserted penis into Stacey Riley’s vagina for second time  (In company of Gibson) Aged 12 years	10 SSO	3 ½ years	24 months Concurrent	18 months
8	Sexual penetration of a child under 16 S 45(1) (Aged between 12 and 16 years) Class 1 offence	“Last time she can recall” - inserted penis into Stacey Riley’s vagina for third time (Gibson asleep) Aged 12 years	10 SSO	3 ½ years	24 months Concurrent	18 months
9	Sexual penetration of a child under 16 S 45(1) (Aged between 12 and 16 years)	“Last time she can recall” - Lincoln Riley kissing Gibson while Gibson inserted her fingers into Stacey Riley’s vagina (In company of Gibson) Aged 12 years	10 SSO	3 ½ years	24 months Concurrent	18 months

Total effective sentence: 17 years 9 months  

Non-parole period: 13 years

Charge	Detail	Incident	Max. Penalty	Sentence	Cumulation/ Concurrency	Additional
1	Sexual penetration of a child under 16 S 45(1) Class 1 offence	“Touched her hair, kissed her and told her to be quiet” - while Lincoln Riley penetrated her with his penis (In company of L. Riley) Aged 12 years	10	3 ½ years	18 months cumulative	18 months
2	Indecent act with a child under 16 S 47(1) Class 1 offence	“She and Lincoln Riley had sex in front of Stacey Riley” - after Lincoln Riley had penetrated Stacey Riley with his penis (In company of Gibson) Aged 12 years	10	1 year	3 months cumulative	3 months
3	Sexual penetration of a child under 16 S 45(1) Class 1 offence	“Took part in the second act of penile/vaginal penetration” - present while Lincoln Riley again inserted his penis into the vagina of Stacey Riley (In company of L. Riley) Aged 12 years	10 SSO	3 ½    years	24 months concurrent	18 months
4	Indecent act with a child under 16 S 47(1) Class 2 offence	“Touched the breasts of Stacey Riley” - while Lincoln Riley was penetrating Stacey Riley with his penis (In company of L. Riley) Aged 12 years	10 SSO	6 months	6 months concurrent	Nil
5	Sexual penetration of a child under 16 S 45(1) Class 1 offence	“Inserted her fingers into vagina of Stacey Riley” - at some point during the night, while Lincoln Riley was kissing Stacey Riley (In company of L. Riley) Aged 12 years	10 SSO	3 ½ years	---	3 ½ years BASE

Total effective sentence: 6 years 9 months

Non-parole period: 3 years 9 months