Director of Public Prosecutions v Roberson (a pseudonym)
[2014] VCC 1224
•5 August 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-14-00391
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOHN ROBERSON (A PSEUDONYM)[1] |
[1] To ensure that there is no possibility of identification of the victim of the sexual offending, this sentence has been anonymised by the adoption of a pseudonym in place of the names of the accused and victims
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 and 25 July 2014 | |
DATE OF SENTENCE: | 5 August 2014 | |
CASE MAY BE CITED AS: | DPP v Roberson (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1224 | |
REASONS FOR SENTENCE
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Cases Cited:
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr B. Stougiannos | Office of Public Prosecutions |
| For the Accused | Mr P. Skehan | McNamaras |
HER HONOUR:
1 John Roberson, you have pleaded guilty to one charge of indecent act with a child under 16. The maximum penalty applicable to that offence is ten years' imprisonment. You have also pleaded guilty to one charge of sexual penetration of a child under 16, that child being under 12 years of age. The maximum penalty applicable to that offence is 25 years' imprisonment.
2 These crimes arise out of events which took place between yourself and Amber Hudson on 13 June 2010.
3 It is not necessary for me to recount in great detail the facts of this matter as they are on transcript, the matter having been opened in some detail by the learned prosecutor and consistent with Exhibit A. I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing. It is sufficient for present purposes to say that the facts in this case, in my opinion, are most serious and disturbing. You also have a troubling and relevant prior criminal history of sexual offending involving minors.
4 I turn to a summary of your offending.
5 Amber is now 10 years of age and at the time of your offending was 6. You are 73 years of age at date of sentence and were 69 when you offended against Amber. You were the Great Uncle of Amber.
6 On 9 June 2010 the parents of Amber, Glenn Hudson and Cynthia Hudson, went to Bali for six days leaving their daughters in the care of Cynthia’s mother for the first four nights and then you and your wife for the last two nights.
7 You and your wife went to the home of Amber and babysat the girls at the house from Sunday, 13 June until Tuesday, 15 June, when their parents returned.
8 On the first night at the house when you were babysitting Amber, Amber and yourself made a tent in her bedroom. When you went into the bedroom to do this you closed the door behind you. You and Amber used poles and blankets to make a tent.
9 Turning to Charge 1, a rolled-up charge, is referrable to the following. The two of you were inside the tent, you pulled your pants down and exposed your penis to Amber asking her to touch it, she refused. You then took hold of her wrist and made her hand touch the top of your penis. Amber described you making her touch your penis and she said it "felt yuck and wet." You then took hold of Amber’s finger and moved it towards her mouth telling her to put her finger in her mouth, she refused and pulled her hand away. Whilst Amber and yourself were in that bedroom she had a lolly in her mouth, you suggested she spit the lolly into your mouth. You moved your face close to Amber’s face and she spat the lolly from her mouth into your mouth with you spitting it back into her mouth. The offending, the subject of this rolled-up charge, is set out in the Indictment.
10 I turn to Charge 2. Whilst under the tent in the bedroom you asked Amber to pull down her pants. When she refused you pulled down her leggings and underwear and told her you wanted to touch her rude part, you then inserted your finger into Amber’s vagina. With your other hand you placed two fingers on the outside of her vagina and moved your hand up and down and side to side. You stopped when your wife called you both for dinner.
11 After dinner you took Amber by the hand and took her to the toilet. You went into the toilet with her, closed the door and told her you were going to show her your doodle. You then again pulled down your pants and exposed your penis to her (part of Charge 1). You told Amber not to tell anyone.
12 On 30 April 2011 Amber and her sister were being babysat by a qualified childcare worker. Amber told the worker you had shown her your penis. The worker informed Amber’s mother, who at that time, did not realise Amber was referring to you.
13 Following a family gathering on 2 December 2012 you were alone with Amber in her family dining room. Amber’s mother had left her mobile phone on the table. You used Google search engine to look up “man’s penis” and “lady vagina” on the phone. The search brought up images of a penis and a bikini on the phone.
14 Amber’s mother returned to the dining room and asked you both what you were doing with her phone. When neither of you answered she took the phone and saw the Google search on the screen. She confronted both of you about what she had seen saying it was disgusting behaviour. Amber’s mother then left the room briefly. When she returned she heard you say to Amber “I told you not to tell your mother."
15 Shortly after that incident you and your wife left the house. Amber’s mother asked her if anything had happened whilst they were in Bali and Amber disclosed to her mother the matters in Charge 1.
16 On 24 September 2013, when on holiday with her family, Amber made further disclosures to her mother referrable to your offending in Charge 2.
17 You were interviewed in relation to Charge 1 on 17 December 2012. You told police you did show Amber your penis but only because she asked to see it, and when you had said no, Amber said if you did not show her she would tell her aunty that you had. You told police you did it to “Keep her bloody shut up I suppose." You said you pulled down your pants and showed her the tip of your penis.
18 Regarding the lolly you told police Amber asked if you wanted a lolly. When you said yes she passed the lolly from her mouth to yours. You said the rest of the allegations were lies.
19 You were interviewed relevant to Charge 2 on 3 October 2013 and you said the further allegations were untrue.
20 You have pleaded guilty to these two charges and you are entitled to have that fact taken into account in your favour and I do so. The community has, by your plea of guilty, been spared the time and cost of a trial, and witnesses, in particular Amber, have been spared the ordeal of having to give evidence upon your trial.
21 There is some history in relation to your plea of guilty as outlined in material filed by your counsel, Mr Skehan, referrable to Charge 1. Following interview on 17 December 2012 the matter went to the Magistrates’ Court for a contest mention. The second VARE was subsequently conducted on 3 October 2013, and it was the offending alleged in Charge 2 that resulted in this matter moving from the summary to indictable stream.
22 Following hearing submissions from both counsel in an attempt to understand what happened at the Magistrates’ Court, it would appear you indicated your intention to plead guilty to the offending comprising Charge 1 before me, and that the prosecution accepted that plea of guilty to that one charge as incorporating five charges you were then facing. A sentencing indication was sought from Magistrate Broughton, however I understood this was not given as the allegations relating to Charge 2 emerged. Whilst Her Honour did not proceed to give a sentence indication the prosecution conceded a wholly suspended term of imprisonment, if dealt with in the Magistrates’ Court, would be within the range of appropriate dispositions for that charge, that is Charge 1.
23 Mr Skehan, as I understood his submissions, relied upon your then plea of guilty and likely disposition had the matter ended there. Ultimately being charged with Charge 2 meant the matter did not proceed as originally intended.
24 I am therefore aware of your preparedness to plead guilty at the contested mention in the Magistrates’ Court to the offending before me in Charge 1, and the sentencing indication sought with consent of the prosecution.
25 Your current trial was then listed to commence on 1 September 2014. You indicated your intention to plead guilty to both the charges immediately prior to Amber being required to give evidence in a special hearing on 22 July 2014. Your pleas meant Amber was not required to be cross-examined, that is to your credit. You are entitled to a sentencing discount as a result of your plea of guilty to Charge 2 and earlier intention indicated relevant to Charge 1, and as I have said the timing of both. Again I note the complainant was not required to give evidence at the special hearing, saving her that additional stress.
26 I accept your plea of guilty is indicative of some remorse, however I am concerned about the extent of your remorse, in particular given your relevant prior criminal history. Whilst dated, it is nevertheless concerning. Adding to my concern is that your sexual offending against Amber occurred so long after that original offending when you were much older and should have been much wiser.
27 You most recently appeared at Melbourne County Court in 1974 on five charges of committing an indecent assault with a girl under 16. You were sentenced then to a total of 12 months imprisonment with a minimum of four months to be served.
28 I was told something of that earlier offending as outlined in the Tendency Notice recently filed by the prosecution for your trial. There were some disturbing similarities of that offending which involved five young female complainants and that which involved Amber, including the respective ages of all the complainants, similarities in some of the allegations, breach of trust, and your offending involving family, including your own biological daughter, and your extended family with Amber. Further I note the similarity between this offending and your suggestion to police in your past and recent records of interview in which you described the various complainants, in essence, "encouraging you" to do the sexual act.
29 Whilst this prior offending is dated it is nevertheless concerning and similar behaviour to that described by Amber. The reason you gave to your counsel for this most recent offending was that "you let your guard down." I was told you were no longer under the care of Dr Newton, your GP in 1969, and had not been in receipt of depo medication for many years.
30 Prior to that Court appearance you appeared in the Frankston Court of Petty Sessions on 9 September 1969 charged with one charge of indecent assault of a child under 16 and were sentenced to two months' imprisonment. You appealed that decision to the Melbourne County Court on 17 November 1969. The appeal was dismissed, the conviction affirmed, and your sentence was varied to two years’ probation with a condition you follow directions of Dr Newton. No further details were given of that offending.
31 Your earliest offending was dealt with at Frankston Petty Sessions on 23 December 1958. You were charged with being found in an enclosed yard without lawful excuse and were released on a bond of £5 to be of good behaviour for a period of approximately six months. I do not regard this offence as relevant when sentencing for the charges before me.
32 Your sexual offending however, whilst dated, is nevertheless concerning and relevant.
33 There are a number of aggravating features of your offending, specifically the breach of trust and telling Amber not to tell anyone.
34 In this regard I note LQ v The Queen[2], a matter following trial in which the court in that case noted:
“There were a number of aggravating features of the offending, all of which were addressed in His Honour’s sentencing remarks. These included the obvious fact that in relation to Counts 1 to 3 the complainant was only eight or nine years of age, moreover the applicant, as the complainant’s uncle, was in a position of trust. His offending was correctly described as brazen, often taking place when members of the family were present in the house where the offending took place. The applicant was only able to get away with his abhorrent behaviour because he was trusted and no one suspected him.”
[2] [2011] VSCA 135
35 Similar considerations apply in the matter before me.
36 By your plea of guilty to the charges before me you are to be sentenced on both charges as a serious sexual offender. As such s.6C and s.6D Sentencing Act 1991 apply. When sentencing you I must regard the protection of the community from you as the principal purpose for which the sentence is imposed, and I may, in order to achieve that purpose, impose a sentence longer than that which is proportionate to the gravity of the offending considered in light of its objective circumstances. Mr Stougiannos, on behalf of the prosecution, did not urge a disproportionate sentence, and I am of the opinion I can appropriately sentence you without the need to impose a disproportionate sentence.
37 As a result of this offending you are also required to be on the Sex Offender Register for life, such being mandatory. Charge 1 is a Schedule 2, Class 2 offence and Charge 2 a Schedule 1, Class 1 offence (see also s.34(1)(c)(2) of the Sentencing Act 1991).
38 There are a number of victim impact statements before me. The victims of your offending, being Amber and her parents, have suffered considerably as a result of your offending, and I shall return to those statements later in these reasons for sentence.
39 As has been pointed out by your counsel there are a number of matters relevant when sentencing as outlined in Mr Skehan’s written submissions dated 22 July 2014 and elaborated upon in oral submissions.
40 You were born on 15 December 1940, your father died in the late 1970s. It would appear your home environment was one where you and your mother were regularly physically assaulted by your father. Your father ultimately left the home when you learned to fight for yourself and defend your mother. Your mother worked for the Post-Master General for most of her life, passing away in 2008.
41 You have a sister who passed away due to illness in 2001.
42 You married your first wife in 1965. There were two daughters of that marriage, Kim and Donna. You still have contact with Kim however Donna passed away in 1993. You also have a son from that marriage and are in contact with him "every now and again."
43 In 1979 you met and married your current wife. She had a son, David, from a previous relationship. David, your stepson as I understood, currently lives with your wife.
44 Turning to your imprisonment in 1974, when you were sentenced to 12 months, you were initially at Pentridge Prison and then at McLeod Prison Farm on French Island. You reported constantly being bashed in the yards at Pentridge and Mr Skehan elaborated upon that in his oral submissions.
45 Regarding your education you were apparently, as a result of violence towards you by a school teacher as I understand, placed at Menzies Boys’ Home where you lived, completing Form 1. You did not know why you were moved from your mother’s home to the boys’ home. You can read and write.
46 I turn to your employment history. In 1954 you began working at Peninsula Cordial Factory as a general hand. In 1956 you began a boilermaker apprenticeship, however lost that when you were hospitalised for appendicitis for two weeks, your mother apparently not notifying your supervisor of your illness.
47 In 1958 you joined the Army’s Armoured Corp as a 17 year old but were discharged after 12 months because of a physical dispute with a corporal on parade.
48 Between 1959 and 1962 you held down various jobs including working for your mother.
49 In 1963 you were a semitrailer driver at Mount Gambier then again worked in various jobs, including with your mother. You worked on a lolly van concession servicing milk bars also.
50 Your most significant period of employment was from 1979 to 1995 when you worked at the Arts Centre in Victoria as a plant operator. You retired because of ill health in the mid-1990s. For a short time after that you occasionally helped your stepson David in his fire sprinkler business.
51 Mr Skehan, in his submissions, referred to your earlier self-report of sexual abuse of you by two others, one when you were 6 or 7 years of age and another when you were 11 years of age. It is not surprising that offending was not reported earlier by you, such is often the case involving allegations of sexual abuse.
52 I note for completeness in this regard the decision in R v AWF[3] and GEM v Q[4], which discussed past sexual abuse of an offender. There was no evidence before me regarding this being relevant to your moral culpability for this current offending or to your rehabilitation. Mr Skehan did not rely on any objective link between your earlier abuse and a state of mind which would have been a proper basis for viewing your criminality as less serious. As I say no such material/evidence was before me in your case.
[3] (2000) 2 VR 1
[4] [2010] VSCA 168
53 There is no doubt the impact of your offending upon Amber and her parents has been profound. I received a Victim Impact Statement from Amber in which she described feeling scared, angry and that she hated you. She cried a lot and could not sleep. She described your offending as “yuck, dirty, gross," and that "it felt wrong." She did not want to tell her mum and dad but could not stop thinking about it at school. She hated being away from her mum and was scared to see you and your wife.
54 She said she loved being at home with her mother but was scared when her mother left her at home with her father. She hated babysitters, did not like male carers or male teachers. She was scared of old men with grey hair. She said she just wanted to be a happy girl and stop thinking about “yuck stuff." She hated seeing white cars like yours and hated seeing the same shoes as yours. You made her very frustrated and sad and scared at aftercare at school because there were boy carers that reminded her of you.
55 There was a Victim Impact Statement from Cynthia Hudson, Amber’s mother. She described the breach of trust by you offending against her child. She described seeing Amber’s behaviour change from being a bright, happy, strong-willed and full of life girl to an angry, frustrated, and at times, uncooperative little girl. There had been pressure on her relationship with her daughter as a result of your offending and also upon the family unit. She asked where she went wrong in her care of her daughter. She had difficulty coping with the guilt of leaving Amber in the care of so-called “family members." It had been an enormous strain on her marriage to Glenn, it had torn the family of Glenn Hudson apart. She referred to Amber attending Gatehouse at the Royal Children’s Hospital as a result of your offending for weekly appointments for over a year. Amber’s sleeping had been affected immensely. Amber had numerous nightmares and cried in her sleep. On the majority of nights Cynthia had to sleep with Amber so she felt safe and that put a strain on her marriage, she felt very torn. Amber had taken a lot of time off school and she and Glenn were worried about the long term effect upon Amber.
56 The impact of your offending had led to pain and suffering to her extended family as family members had to listen to Cynthia’s tears at the end of the phone and pick up the pieces. Cynthia’s father felt he could not be alone with his granddaughter. Cynthia and her husband did not get out as much as Amber only felt comfortable being left with her mother, father or Cynthia’s brother and his wife.
57 There was a statement to be sworn by Glenn Hudson, which has subsequently occurred and was filed with the court. In his Victim Impact Statement he said your offending had put a huge cloud over his family with the pressure at times unbearable. He described Amber as having been robbed of her childhood and how he did not know how to make it right for her. He felt he was to blame as you were from his side of the family. He described the relationship between he and Cynthia as being under significant stress as a result of your offending. He worried about Amber and the amount of time she had taken off from school as a result of your offending and with her need to attend appointments. He further described the breakdown in his relationship with his sister over your offending and the difficulty of family gatherings. He described your breach of his trust.
58 A number of authorities referred to the effects upon a victim of sexual offending, including DPP v Toomey[5], in which His Honour Vincent J referred to the social rehabilitation citing DPP v DJK[6], in particular at paragraphs 15 and 16, and of course I allow again for the differences in the factual circumstances in that case to the present. His Honour said:
"Each of the victims, including N, asserted in their victim impact statements that the effect of the offending upon him was to "profoundly and permanently psychologically scar him, and in a tangible way, has affected many aspects of his behaviour." With respect to those statements I repeat comments that I have made as a sentencing judge on more than one occasion, they constitute a reminder of what might be described as the human impact of crime. They draw to the attention of the judge, who would of necessity, have to consider the possible and probable consequences of criminal behaviour, not only its significance to society in general but the actual effect of a specific crime upon those who have been intimately affected by it. The statements provide an opportunity for those whose lives are often tragically altered by criminal behaviour to draw to the court's attention the damage and sense of anguish which has been created and which can often be a very long duration. For practical purposes they may provide the only such opportunity.
Obviously the contents of the statements must be approached with care and understanding. It is not to be expected that victims will be familiar with or even attribute significance to the many considerations to which a sentencing judge must have regard in the determination of a just sentence in the particular case, nor would it normally be reasonable or practicable for a sentencing judge to explore the accuracy of the assertions made. Nevertheless there has been an increasing level of appreciation by the courts of the value of victim impact statements. In my view they play an important role with respect to an aspect of the criminal law to which reference is not often made. They play their part in achieving what might be termed 'social and individual rehabilitation.' Rehabilitation, in this sense, is not perceived from the perspective of the offender but from that of those persons who have sustained loss and damage by reason of the commission of an offence.
This notion of social rehabilitation is one that I do not believe has been accorded anything approaching significant recognition as an identifiable underlying concern of the criminal justice system. It seems to me that the process of personal and social recovery which we attempt to achieve in order to ameliorate the consequences of a crime can be impeded or facilitated by the response of the courts. The imposition of a sentence often constitutes both a practical and ritual completion of a protracted painful period. It signifies the recognition by society of the nature and significance of the wrong that has been done to affected members, the assertion of its values, and the public attribution of responsibility for that wrongdoing to the perpetrator. If the balancing of values and considerations represented by the sentence, which of course must include those factors which militate in favour of mitigation of penalty, is capable of being perceived by a reasonably objective member of the community as just, the process of recovery is more likely to be assisted. If not there will almost certainly be created a sense of injustice in the community generally that damages the respect in which our criminal justice system is held and which may never be removed. Indeed from the victim's perspective an apparent failure of the system to recognize the real significance of what has occurred in the life of that person as a consequence of the commission of the crime may well aggravate the situation.”
[5] [2006] VSCA 90
[6] [2003] VSCA 109
59 The effects upon a victim, and victims, are a relevant sentencing consideration (see s.5 of the Sentencing Act 1991). I am, however, conscious that I must not allow the effects upon a victim, and victims, to swamp the sentencing process.
60 Mr Skehan relied heavily upon your plea of guilty to the charges before me, also that you are 73 years of age and not in good health, and some material was provided regarding the latter.
61 Turning to Exhibit 3 there was a report from Dr Paul O’Halloran, dated 10 July 2014, from Wingrove Medical Clinic in Fairfield, who referred to you recently being hospitalised for pancreatitis. You also had an earlier admission into hospital in 2011 for the emergency repair of a ruptured aortic aneurysm.
62 In his report, Dr O’Halloran outlined your other significant health conditions which include cardiac disease, diabetes and lumbar spine surgery in the 1980s. In his opinion there was a possibility pancreatitis could recur which may require further hospitalisation. In his opinion incarceration would have a severe detrimental consequence for your health. He referred to your past medical history from 1982 and to your current medication list, which included approximately 15 medications you were either taking on a regular basis or were required to take in certain circumstances. Whilst Mr Skehan was not specifically relying on any of the principles in R v Verdins & Ors[7] relevant to sentencing, I can, do and must take into account the report by Dr O’Halloran and accept that incarceration will make your prison sentence more burdensome for you than it would should you be younger, more able-bodied and without health issues.
[7] (2007) 16 VR 269
63 There was also a report from Craig Turner, Registered Nurse at the Epworth Hospital, Richmond, dated 3 July 2014, which outlined medication you were then being prescribed.
64 Also there were reports before me from Mr Julian Choi, Surgeon. The first report was dated 26 June 2014 and related to your then pancreatitis. Mr Choi noted your history of a triple bypass with ischaemic heart disease. Also you had diabetes, hypertension, hyperlipidaemia and obesity. There were two further reports from Mr Choi, both dated 16 July 2014. One was written following review of you after your admission to the Epworth Hospital three weeks earlier with severe pancreatitis. You were, at that stage, slowly recovering and his intention was then to review you four weeks later. There was a further report directed to you not being able to attend court at that time.
65 Regarding your age and ill health I note R v Van Boxtel[8] which cites R v Smith[9]:
"The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Service authorities to provide appropriate care and treatment for sick prisoners. Generally speaking ill health will be a factor tending to mitigate punishment only when it appears imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender’s health."
Further in Van Boxtel Callaway J stated:
“The weight of authority and Victorian sentencing practice support the view that it is a circumstance of mitigation that a sentence of imprisonment will be significantly more burdensome for a prisoner than for a person in normal health. That applies to both physical and psychiatric illnesses and disabilities.”
[8] [2005] VSCA 175
[9] (1987) 44 SASR 587:
66 In The Queen v RLP[10] the court also referred to the age and ill health of an offender when sentencing. Such are relevant considerations when determining general deterrence, and may mitigate the sentence as they make custody more burdensome for the offender.
[10] [2009] VSCA 271
67 Reference was made to R v Saw[11] in which Redlich J said:
“The significance of old age as a mitigating factor is that general deterrence may be required to surrender some ground to the need to exercise mercy, to take account of the possibility that you may not live to be released." Austin (1996) 87 A Crim R 570 (Malcolm J at 572).
[11] [2004] VSC 117
68 Reference was also made to R v Bazley[12] in which the court warned:
“The age of an offender is no doubt a relevant sentencing consideration. It may in some cases be of significance but it cannot be allowed to be a justification for the imposition of an unacceptably inappropriate sentence.”
[12] (1993) 65 A Crim R 154
69 The Court approached advanced years and ill health with the propositions as set out in paragraph 39 of that decision in mind.
70 In The Queen v Iles[13] the Court referred to the age of the appellant, in also Bazley and R v Cumberbatch[14]. Justice Neave also referred to the age of the complainant and the accused:
[13] [2009] VSCA 197
[14] (2004) 8 VR 9
“The offences in this case were very serious ones involving the abuse of a girl who was only eight years old by a 60 year old man. They involved serious breaches of the trust which the child’s parent had reposed in the appellant.”
Referring to the age of the appellant (83 in that case at sentence):
"Old age was central to, though not determinative of, the quantum of sentence to be imposed. While giving due attention to the appellant’s age confidence in the administration of justice had to be maintained by imposing a sentence which reflected the gravity of the crime. That is to say the age of the appellant did not permit the imposition of an inappropriate sentence, rather it was to be taken into account in determining what justice required.
Old age is generally spoken of as a mitigating factor permitting the imposition of a sentence which is shorter than otherwise might be the case. The significance of old age as a mitigating factor is that general deterrence may be required to surrender some ground to the need to exercise mercy to take account of the possibility the offender may not live to be released.”
71 I accept you do have ill health, as described, and are also of advanced age. I have also been advised that there has been some difficulty in you obtaining your diabetic medication in custody as frequently as you consider it is required. Whilst I do not have any control over the provision of medication to you, and/or your management within the prison system, the authorities are well aware of your health issues as I previously provided medical reports when you were remanded in custody. I understand from authorities that a prisoner’s medical history is a relevant consideration to the authorities and that they do act upon such material. Apart from that I rely upon the authorities to care for you in an appropriate manner.
72 Mr Skehan submitted there was a possibility you would die in prison and I have also taken that into account. As I have said your ill health is a relevant sentencing consideration and one I take into account in mitigation of your sentence, whether consistent with the principles in Verdins or general sentencing principles. I note that the former was specifically not relied upon by your counsel, nor did Mr Skehan seek to rely on the recent report apparently received by him but not tendered before me.
73 Mr Skehan candidly conceded at your plea your offending was serious and that you had “paedophilic tendencies." He confirmed you attended upon Dr Newton for depo injections for only a short time. You had, however, he submitted, not offended within the last approximately 40 years apart from this most recent offending.
74 Mr Skehan conceded the aggravating features of your offending, specifically the breach of trust, and also your instruction to Amber that she not tell anyone of your offending.
75 There is no doubt offending against children in a sexual way is regarded very seriously by the courts, that this has been frequently stated in cases, including R v Roosmalen[15], R v Burnett[16], R v Wayland[17], R v Parente[18], DPP v DJK[19] and R v Di Nardo[20]. This list is by no means exhaustive or current. There is no doubt, however, the courts regard sexual offending against children as very serious indeed.
[15] (1989) 43 A Crim R 358
[16] 70 A Crim R 469
[17] 14 September 1992, CCA Victoria
[18] 20 February 1996, CA Victoria
[19] [2003] VSCA 109;
[20] (1998) 2 VR 493
76 Mr Stougiannos, on behalf of the prosecution, submitted your offending was very serious and that Amber was just 6 years of age. He referred to the disparity in age of Amber compared with yourself, she is 6 and you 69 years of age at the time of your offending. Further, that your offending occurred when Amber was under the care of both you and your wife, and as such there was a significant breach of trust, not only to Amber, but also a breach of trust placed in you by Amber's parents.
77 You were, as Mr Stougiannos described, quite brazen in your offending with your wife and Amber’s sister in the house at the time.
78 Mr Stougiannos also referred to your directions to Amber she not tell anyone about your offending.
79 He acknowledged your plea of guilty was a relevant sentencing consideration in mitigation of your sentence, and as previously stated, I agree.
80 Mr Stougiannos referred to the concerns in both your past and current offending, that you blamed the victims for your offending. He also referred to the similarities in your previous offending to that involving Amber.
81 Mr Stougiannos referred to statistics and some cases relevant when sentencing for this offending. There is no doubt the principles as stated within the various authorities to which I have referred, and the sentencing statistics, are relevant. However, as I discussed with Mr Stougiannos, it is very difficult comparing cases factually. Also, there is a lot of information not available to me when interpreting and understanding statistics, including the factual circumstances surrounding the particular offending and any matters personal to the offender at the time, and whether or not the principles in Verdins applied.
82 I have, however, read the material to which I was referred.
83 Ultimately I must determine the appropriate sentence based on all the material currently before me in your plea, and I proceed on that basis.
84 When sentencing you, as previously stated, you are required to be sentenced as a serious sexual offender. Relevant to that is the decision of R v McL (2000) 174 ALR 1 at paragraph 76.
85 As well as matters to which I have referred, including your prospects of rehabilitation of which I have guarded optimism, I must also take into account the need for general and specific deterrence, especially general deterrence, which is of considerable importance in a case such as this.
86 There is also the need for specific deterrence when sentencing you as you have a relevant prior criminal history, albeit again I note it is dated. It is however disturbing that after such a lengthy period of time of non-offending you re-offended in a manner very similar to your earlier offending. I also note there was no report before me addressing your risk of future sexual offending.
87 I must also consider the question of protection of members of the community from you and bear in mind the likelihood of your re-offending. I have some concerns about that, again given the lack of material assessing your future risk. Having said that on the one hand I note your advanced age, and on the other you did offend when you were 69 years of age. I remain concerned about the need to protect members of the community from you.
88 I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
89 When sentencing I note Charge 1 is a rolled up charge and as such the principles as stated in R v Jones[21] are applicable, and also I have referred to Charge 1 and the previous history of it at the Magistrates' Court.
[21] [2004] VSCA 68
90 On Charge 1 you are convicted and sentenced to 18 months’ imprisonment.
91 On Charge 2 you are convicted and sentenced to 3 years and 6 months’ imprisonment.
92 Charge 2 is the base sentence and I direct that 8 months of Charge 1 be served cumulatively upon Charge 2.
93 That results in a total effective sentence of 4 years and 2 months’ imprisonment and I direct that you serve a period of 24 months, that is 2 years, before you are eligible for parole.
94 I have, in imposing this non parole period, significantly reduced that term due to your age and ill health.
95 Pursuant to s.18(4) Sentencing Act 1991 I declare you have spent 14 days in custody up to and including yesterday, 4 August 2014, by way of pre-sentence detention, and I direct that that be entered into the records of the court.
96 Pursuant to s.6AAA Sentencing Act 1991 had you been found guilty of these two charges following jury verdict, in other words if you had pleaded not guilty and been found guilty of those two charges I would have sentenced you to a term of imprisonment of 5 years and 6 months and set a non-parole period of 3 and 6 months.
97 The prosecution made application for a forensic sample pursuant to s.464ZF, this was consented to by counsel on your behalf and I make the order in the terms sought, it will be for a saliva sample, and I do that on the basis of the seriousness of this offending and your prior convictions, and I must advise you authorities may use reasonable force in order to obtain that sample.
98 Any other orders? No? Right what about the Class 1 et cetera for the serious sex offender? Yes?
99 MR CAMERON: Your Honour I agree with what Your Honour's said, sexual penetration's a Class 1, Schedule 1 offence.
100 HER HONOUR: Now you just agree with both of them as I said?
101 MR CAMERON: Yes Your Honour.
102 HER HONOUR: Okay PSD, is that correct up to and including yesterday only, being 4 August, is that correct?
103 MR CAMERON: Yes Your Honour.
104 HER HONOUR: All right Miss Jackson's going to come back to the back of the court and ask you to sign for a receipt of the Sex Offender Registration papers. You're not being asked if you want to be on the register, I've decided you will be, you're simply being asked to sign for receipt of bits of paper that tell you all about it, if you don't want to sign it that's fine, your counsel can go back with you if you wish to explain it to you. Yes all right, thanks. Is there anything in this matter?
105 MR CAMERON: No Your Honour.
106 HER HONOUR: No? Right remove Mr Squires thanks. Yes thank you very much.
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