Director of Public Prosecutions v Roder (a pseudonym)
[2024] VCC 1781
•26 November 2024
| IN THE COUNTY COURT OF VICTORIA AT LATROBE VALLEY CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| SEXUAL OFFENCES LIST |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BENJAMIN RODER (a pseudonym) |
---
JUDGE: | HIS HONOUR JUDGE McINERNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22, 23, 24, 25, 26, 29 and 30 July 2024 (trial) | |
DATE OF SENTENCE: | 26 November 2024 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Roder (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1781 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW – SENTENCE
Catchwords: Incest (9 charges) – indecent act with a child under the age of 16 (6 charges) – indecent act with a 16 or 17-year-old (one charge) – indecent assault (two charges)
Legislation Cited: Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1991, s47(1); s44(2); s39(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Rape) Act 2007;l Sentencing Act 1991, s14; Sex Offenders Registration Act 2004; Evidence Act 2008, s32
Cases Cited:Reid (a Pseudonym) v The Queen [2014] 42 VR 295; The Queen v Sposito (unreported, Supreme Court of Victoria, Court of Criminal Appeal, 8 June 1993); DPP v Short [2006] VSCA 120; DPP v Dalgliesh (a pseudonym) [2016] VSCA 148; Trangle (a pseudonym) v The Queen [2021] VSCA 210; The Queen v Piacentino (2007) 15 VR 501; Hasan v The Queen (2010) 31 VR 28; R H McL v R (2000) 203 CLR 452; Gordon (a pseudonym) v The Queen [2013] VSCA 343; DPP v Sears (a pseudonym) [2023] VCC 2450, unreported, 19 December 2023; R v Verdins & Ors (2007) 16 VR 269
Sentence: Total effective sentence of twenty-five (25) years’ imprisonment.
Sentence:Non parole period of 18 years from the 19.12.23 pursuant to s14(1) Sentencing Act 1991(Vic).
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S Clancy (trial and first day of plea); and Ms C Parkes (second day of plea) | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr S Anger | Dribbin & Brown Criminal Lawyers |
HIS HONOUR:
1In this matter, Mr Roder[1], a driver by occupation, born in June 1970 now aged fifty-four, stood trial on Indictment number L101376453A. At such trial, Mr Steven Anger of Counsel appeared for Mr Roder, and Ms Stephanie Clancy appeared in the trial and the first day of the plea, and Ms Catherine Parkes appeared on the second day of the plea for the Prosecution.
[1] A pseudonym
2The trial lasted from 22 July 2024 to 30 July 2024 and was preceded by a number of pretrial hearings and rulings.
3The Jury went out to deliberate on 29 July 2024 and returned verdicts on 30 July 2024.
4The plea was conducted on 12 September and 6 November 2024.
5By way of background, Mr Roder was in a defacto relationship with the mother of the two complainants from 1999 to 2010. [EW],[2] the youngest, was born in 1994 and was assaulted by Mr Roder from the age of five, through to the age of thirteen; that is, from September 1999 to December 2007, a period of eight years.
[2] A pseudonym
6[MW][3] the older child, born in 1991, was assaulted by Mr Roder from the age of ten or eleven to eighteen; that is, from January 2002 to 31 December 2009, a period of seven or eight years.
[3] A pseudonym
Jury findings
7On 26 July 2024, I discharged the Jury, pursuant to s241(2)(b) of the Criminal Procedure Act, from considering verdicts, as to [EW], being Charges 4, 7, 8, 9, 10 and 11, and as to [MW], being Charges 12, 21 and 25.
8As to [EW], the Jury convicted Mr Roder of five charges on the Indictment, being three charges of incest with a child of his defacto spouse, an offence under s44(2) of the Crimes Act 1958, being Charges 2, 5 and 6,on the Indictment and a further two charges of indecent act with a child under the age of sixteen, an offence under s47(1) of the Crimes Act 1958, being Charges 1 and 3.
9As to [MW], the Jury convicted Mr Roder of thirteen charges, being six charges of incest, Charges 13, 15, 16, 19, 22 and 24; four charges of indecent act with a child under the age of sixteen, being a breach of s47(1) of the Crimes Act 1958, being Charges 14, 17, 18 and 20; one charge of indecent act with a sixteen or seventeen-year-old pursuant to s49(1) of the Crimes Act 1958, being Charge 23, and two charges of indecent assault, being an offence against s39(1) of the Crimes Act 1959, being Charges 26 and 27.
10The maximum sentences for the charges are:
· Incest - 25 years’ imprisonment
· A breach of s47(1) - 10 years’ imprisonment
· A breach of s49(1) - 5 years’ imprisonment
· A breach of s39(1) - 10 years’ imprisonment.
11In sentencing Mr Roder, given that he has previously been sentenced by me for five serious sexual offences, he comes, in regard to each of these offences, to be sentenced as a Serious Sexual Offender.
12Mr Roder will be subject to Sex Offenders Registration Act 2004, under which scheme he is already registered and obliged to report for life in the sentence of 12/23.
13It is to be noted that this sentence is not subject to the standard sentence regime.
14When I initially read the depositions in December 2023, I could not believe the brutality with which Mr Roder had treated the two children of his defacto spouse. The youngest, [EW], was treated with contempt, being regularly called by Mr Roder a “little cunt”, disciplined by him physically and with the use of a strap. [EW] at times was dragged by the ears along the floor and kicked, and another time, slapped across the ears. As a result, [EW] was particularly fearful of Mr Roder. It was agreed that these matters would not be put to the jury specifically, the only matter put before the jury as to physical abuse was that [EW] was physically disciplined by Mr Roder.
15In that regard, Mr Anger asked me to ensure that I do not allow my initial thoughts as to the manner in which Mr Roder treated his stepchildren to exacerbate the sentence. I assured Mr Anger that I would do so and that I had enough to concentrate on just sentencing Mr Roder for the offences of which he had been found guilty.
16During the sexual abuse committed on these two boys, Mr Roder had told them both to keep such acts a secret, and as to [MW], after the first act of fellatio, being Charge 13, and again, after Charge 24 occurred, had advised [MW] that, “if [anyone] found out [about this] we will both be in trouble”. Further, after Charge 14, he emphasised again the need for such offending to be kept secret, and before Charge 17 occurred, where [MW] had masturbated Mr Roder’s penis, he had been told by Mr Roder that if he did not do what he wanted his disappearance would be arranged by friends of Mr Roder. Indeed, [MW] said he was still scared of Mr Roder at the age of eighteen, when Charges 26 and 27 occurred.
Victim Impact Statement
17The Victim Impact Statement of [MW] dated 11 September 2024 was read out during the plea by the Prosecutor. It refers to severe mental issues, depression, anxiety and repeated thought processes reliving the assaults committed upon him by Mr Roder. It also talks of a mental breakdown and attempted suicide by [MW] some three years ago. This Court finds it difficult, without a psychiatric report, to ascribe such mental issues and consequences directly with the alleged behaviour perpetrated upon [MW], so long ago, however experience shows that reactions such as that are well accepted as being the result of the impact of such sustained sexual abuse.
18There was no victim impact statement filed by [EW].
19In regard to both victims, I take into account what Priest JA said in Reid (a Pseudonym) v The Queen [2014] 42 VR 295, at [83]:
“… incest is often a crime where the vulnerable, who are worthy of protection, are exploited by those entrusted with their care. It is now seen to be a crime which — when perpetrated by an adult parent (or step-parent or grandparent) against a child — is erosive of human relations, the prominent features of which include ‘the exploitation by the stronger will of the adult of the weaker will of the child, the physical and psychological subordination of the child to the perverted indulgences of the adult, the gross breach of trust placed in the offender by the victim and the community, and the irreparable and fundamental damage to the victim’.”
Principles relevant to crimes of incest
20It is to be remembered that the Parliament determined to increase the maximum penalty for incest to twenty-five years in 1997. It is to be pointed out that such maximum is the highest penalty provided under the Crimes Act 1958, short of a sentence of life.
21In the Second Reading Speech on 27 May 1997, the relevant Minister said:
“… The government believes sexual crimes against children are extremely serious and when they occur have the potential to ruin young lives. This view has been repeatedly expressed by members of the public, victims’ groups and other specialist bodies, and is now being acted upon. … .”[4]
[4]See extract from Victoria, Parliamentary Debates (Hansard), Legislative Assembly, 27 May 1997, Sentencing and Other Acts (Amendment) Bill, 1059
22The Victorian Court of Appeal has made a number of pronouncements in regard to this crime.
23In The Queen v Sposito (unreported, Supreme Court of Victoria, Court of Criminal Appeal, 8 June 1993), a determination of Marks J (with whom Hampel and McDonald JJ agreed), his Honour said, at [42]:
“A society which fails to protect its children from sexual abuse by adults, particularly by those entrusted with their care, is degenerate. The offence of incest is particularly erosive of human relations and casts doubt on the assumption that parents are natural trustees of the welfare of their children. It ought to be unnecessary to recount the morbid features of incest, the most prominent of which include the exploitation by the stronger will of the adult of the weaker will of the child, the physical and psychological subordination of the child to the perverted indulgences of the adult, the gross breach of trust placed in the offender by the victim … .”[5]
[5]Supreme Court of Victoria, Court of Criminal Appeal, 55 of 1993, 7 June 1993, 8 June 1993, BC9300691
24In 2006, the Court of Appeal, in DPP v Short [2006] VSCA 120 observed:
“… Those who are minded to engage in such behaviour and exercise either their physical power or that arising from their dominant relationship position over vulnerable persons must anticipate the imposition of substantial terms of imprisonment. The courts, when dealing with such cases, must have regard to the vindication of the community’s social values, pre-eminent among which are the protection of the personal integrity and physical safety of its citizens. … .”
25Then, in DPP v Dalgliesh (a pseudonym) [2016] VSCA 148, the Court of Appeal said, at [123], that such sentences must reflect the gravity of the offending, particularly offending against children which involves an ‘egregious breach of trust and appalling consequences for victims.’
26And then, at [126], the following:
“… community values have an important role to play in assessments of the objective gravity of a particular offence. Sentencing for incest must reflect society’s denunciation of the sexual abuse of children and the profound harm which it causes. The very high maximum penalty underlines the seriousness with which the offence is regarded.”
27And finally, in Trangle (a pseudonym) v The Queen [2021] VSCA 210, in considering sentences for high-end incests, the Court of Appeal said, at [78]:
“In the circumstances we consider that the individual sentences of 10 years’ imprisonment for most of the charges of incest were within the range applicable to high-range offending following Dalgliesh and reasonably open to the sentencing judge, following a fully contested trial.”
28It should be pointed out that Trangle also involved high-end violence, deprivation and was subject to the standard sentencing scheme.
Prosecution submissions as to objective gravity
29The prosecution submitted that the offending here was extremely serious, involving a fundamental breach of trust by Mr Roder of his obligations to both the children of his defacto and his defacto.
30At [5] of Exhibit A, the Prosecution Submissions on Plea, the prosecution detailed objective factors for the Court to take into account.
31The defence made no submissions as to the objective offending, albeit accepting the seriousness of the offences of which Mr Roder had been found guilty.
Objective gravity
32In determining the objective gravity of each of the individual charges, one must in this instance take into account the following factors:
(i) The breach of trust and parental authority to the children of Mr Roder’s defacto and indeed to his defacto;
(ii) The persistence of offending against both boys, being a period of eight years, which began, in regard to [EW], when he was five, and [MW], when he was ten to eleven;
(iii) That the sexual crimes effected upon both children were both predatory and opportunistic;
(iv) The offending was committed by way of Mr Roder’s domination of both children, him telling both of them to keep such activities secret, in particular, in regard to [EW], after Charge 2 the anal intercourse and after a further act of incest, Charge 5, telling him that he would be dead if anyone found out about it. Further, as to [MW], in order to make him perform the sexual act in Charge 17, he indicated to him that friends of his would make him “disappear” if he did not do what he was told;
(v) Many of the assaults took place while other members of the family or friends were in or near the house, bring Charges 3,6,13,15, 22 and 24.
Separate consideration
33I am of course required to give separate consideration to each Charge. In that regard, I will describe each Charge insofar as it relates to each complainant:
[EW]
Charge 1 – Indecent act with a child under 16 contrary to Section 47(1) of the Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1991
34The first sexual touching involving [EW] by Mr Roder occurred in the period September 1999 to September 2000 when they were living at Wallan.[6] The child, [EW], was home ill from school. He had a shower and thereafter, when getting dressed, was asked by Mr Roder to come into his bedroom. He was placed on the bed and Mr Roder massaged him with oil over a period of some 5 minutes. The massaging involved Mr Roder placing his hands inside the jockettes worn by [EW], placing his hands over [EW]’s buttocks and placing his fingers in what [EW] described as his “butt crack”.
[6] Location de-identified.
Charge 2 – Incest contrary to Section 44(2) of the Crimes Act 1958
35[EW] was aged eight when this act of incest occurred in the period January 2002 to September 2006. This date was amended at trial as [EW] was not sure of the particular occasion, but said he was raped in the bedroom where his head was held down into the pillow on his white pole bed which he had at the time. He said he could not breath and was subjected to anal intercourse by Mr Roder. Subsequently, when he was in the toilet, he noticed sperm and blood, some of which got onto his undies. He flushed it away in the toilet, having wiped himself. His mother subsequently noticed the stain on his undies and he had explained to her that he had a blood nose. The particulars of this charge were deleted by my ruling of the 25.07.24.
Charge 3 – Indecent act with a child under 16 contrary to Section 47(1) of the Crimes Act 1958
36This occurred in the period 2004 to 2006 when [EW] was approximately ten years old. The family had a visit to an amusement park and were living at King Lake.[7] He had returned home dirty from the visit. Mr Roder had yelled to him as he was having a shower to get out of the shower because he was using tank water. As he was drying himself, Mr Roder came into the bathroom and grabbed [EW]’s penis. Mr Roder was disturbed by hearing [EW]’s mother in the vicinity and told [EW] not to tell anyone, that this was their secret.
[7] Location de-identified.
Charge 5 – Incest contrary to Section 44(2) of the Crimes Act 1958
37This occurred when [EW] was ten to twelve years old in the period September 2004 to September 2006. It occurred in the red shed at the property in King Lake. [EW] had walked home through the farm property looking for his bike, but could not find it. As a result he went into the red shed workshop to see if he could find it. When he went into the workshop, Mr Roder was there, who proceeded to push [EW] up against a car in the workshop, pull his pants down and put his finger in [EW]’s anus. Mr Roder said to him afterwards, “This is our secret. If anybody finds out about this … you’re dead”, from which [EW] said he understood that Mr Roder was referring, at that stage, to his bikie mates.
Charge 6 – Incest contrary to Section 44(2) of the Crimes Act 1958
38This is said to have occurred in 2007. [EW] was dusty from working at a panel beaters. He went into the shower and Mr Roder came in. Mr Roder placed his finger up his anus and again thereafter said to him, “This is our secret”. [EW] said his mother was at home at the time of this assault. The particulars of this charge were amended by my ruling of the 25.07.24.
[MW]
Charge 13 – Incest contrary to Section 44(2) of the Crimes Act 1958
39This occurred between January to March 2002 when [MW] was ten or eleven. It in fact is the first sexual assault proved against Mr Roder in regard to [MW] as a result of the Jury verdict. [MW] said that he was in Grade 5 at the time and riding his bike with friends. He was dirty when he returned home and was told by his mother to go and have a shower. Mr Roder said to him, “Not to be too long in the shower”. He was in the shower with the curtain drawn when the door opened and Mr Roder pulled the curtain back. [MW] tried to cover himself. Mr Roder said he wanted to look at his genitals. [MW] said, “Benjamin then knelt down … and … put my … penis into his mouth”. Thereafter, there was a moaning noise. Mr Roder stopped fellating the child when he heard a noise in the house and shouted, “Not to be too long”. [MW] said he was confused and teary and went into his bedroom and thereafter, Mr Roder came in and said to him, “that it was our secret and that no one could know”.
Charge 14 – Indecent act with a child under 16 contrary to Section 47(1) of the Crimes Act 1958
40This occurred in 2002. [EW] was staying at a sleepover. [MW] was home alone in Wallan with Mr Roder, who called him into his bedroom. He was in bed and asked [MW] to sit down. Mr Roder was naked in the bed. He asked [MW] to get into the bed, took his shirt and pants off and touched his genitals. He asked [MW] to hold his penis and he began to thrust while [MW] was holding his penis and he had [MW] masturbate his penis. Mr Roder started to moan and groan. He then said for [MW] to leave the room as he would finish off.
Charge 15 – Incest contrary to Section 44(2) of the Crimes Act 1958
41Charge 15 is a charge of incest. [MW] said it occurred when they were living in King Lake and he was in Grade 6. His mother and siblings had gone shopping at the IGA supermarket. He in fact was asleep and was woken up by Mr Roder sucking on his penis. He was shocked and scared of this. Mr Roder said to him, “[I] wanted to wake [you] up in a nice way”, and when he became erect, which concerned the child, Mr Roder said to him, “[I] knew [you] were enjoying it”. This sexual activity stopped when they heard a knock at the door, which turned out to be one of [MW]’s friends coming to the house.
Charge 16 – Incest contrary to Section 44(2) of the Crimes Act 1958
42Again, this charge occurred at King Lake when [MW] was at High School in Grade 6. [MW] had suffered a migraine at school and was picked up by Mr Roder in his car. On the way home Mr Roder parked at the King Lake Lookout and they were listening to music, in particular, a Metallica song. Mr Roder asked to see the child’s genitals and [MW] said, “No”. Mr Roder was not happy at such refusal, and asked if he could just play with his penis until the end of the song. He played with and then sucked [MW]’s penis. Mr Roder noted that the child’s penis had not got hard.
Charge 17 – Indecent act with a child under 16 contrary to Section 47(1) of the Crimes Act 1958
43This occurred when [MW] was in Year 7 at the local Secondary College from April 2004 to December 2004. They were still living at King Lake and it was approximately halfway through the year, after the Easter holidays. [MW]’s mother, sister and brother had gone to Narre Warren to do shopping. In his evidence-in-chief, [MW] did not recall anything further and pursuant to leave under s32(2) of the Evidence Act he revived his memory. He said that after lunch, when he was home alone with Mr Roder, he was asked to come down to Mr Roder’s bedroom and lay on the bed. Mr Roder proceeded to rub his stomach with his right hand and said that he, “missed him”. [MW] said, “I told him that I didn't want anything to happen and I had chores to do and I wasn't comfortable with it.” He said Mr Roder said, if I wouldn’t do it and if I didn’t keep our secret, he would tell a friend of his, who would make him disappear. He said thereafter, Mr Roder proceeded to take his jeans off and had the child rub his penis until Mr Roder ejaculated. The ejaculate went all over [MW]’s hand and stomach. Mr Roder used one of his t-shirts to clean himself up and threw the t-shirt at him and asked him to wash his hands.
Charge 18 – Indecent act with a child under 16 contrary to Section 47(1) of the Crimes Act 1958
44The family were now in Yarra Glen[8] in 2004 and this offence happened late in the year. He was doing chores and had a shower and when he stepped out of the shower, Mr Roder came into the bathroom naked. He wanted to shower with him and Mr Roder got into the shower with the child and washed [MW]’s genitals and anus. Pursuant to leave under s32, he was then allowed to revive his memory when he did not recall what happened thereafter. He said, having so revived his memory, that he masturbated Mr Roder until he ejaculated and the ejaculate went onto [MW]’s genitals.
Charge 19 – Incest contrary to Section 44(2); and Charge 20 – Indecent act with a child under 16 contrary to Section 47(1) of the Crimes Act 1958
[8] Location de-identified.
45Charge 19 is a further charge of incest which occurred when [MW] was fifteen and in Year 9 in 2006. It was Christmas holiday time at the end of Year 9 when he was attending Yarra Glen High School. He was watching a video, which he paused when Mr Roder came into his room. Mr Roder said he wanted to see [MW]’s genitals and he touched his genitals with his hands (Charge 20) and thereafter put [MW]’s penis in his mouth again. This charge of fellatio being Charge 19. He said thereafter, “This is our secret and no one could know”.
Charge 22 – Incest contrary to Section 44(2) of the Crimes Act 1958
46[MW] said they were now living at Narbethong[9] and this offence occurred at the end of Year 10. He was sixteen years of age and the offence took place somewhere from November 2007 to February 2008. It was the Christmas holidays. His sister’s partner was now living at the home and in evidence-in-chief, he said he could not remember fully the details; he could not remember what happened thereafter. He was given leave to revive his memory under s32, and he said that he was in the kitchen when Mr Roder called him from his bedroom. His mother was at work at Narbethong Hospital and the rest of the family were out. When he got to Mr Roder’s room, Mr Roder was laying in the bed and he patted the bed and asked him to sit down next to him and said he wanted to have a chat. He told the child that he really enjoyed everything they had done and that they could do it more often but it was hard because of such a busy household with so many people living in it. [MW] said, “He said that he wanted to see my penis again … and he pulled my pants down”. The child did not say anything. He just lay there and Mr Roder pulled [MW]’s pants down to his knees. He started stroking the child’s penis and said he could not wait to see his penis hard again, and then he fellated the child. This incident stopped when [EW] apparently arrived home on his bike in the driveway.
Charge 23 – Indecent Act with a 16 or 17 yr old contrary to Section 49(1) of the Crimes Act 1958
[9] Location de-identified.
Charge 24 – Incest contrary to Section 44(2) of the Crimes Act 1958
47This again was a charge of incest by way of fellatio and it occurred between February 2007 and February 2008. [MW] had been working in the paddock and came up to have lunch in the house. The rest of the family went back to work and thereafter, Mr Roder asked [MW] to go into his bedroom. Mr Roder took off his pants and said to the child that he had missed his genitals, the child became erect. Mr Roder asked the child to play with his penis, which [MW] did. (Charge 23)
Thereafter, he put [MW]’s penis in his mouth and fellated him. (Charge 24) He subsequently ejaculated on [MW]’s bottom and gave him a shirt to clean it up with. He further said that they were to keep this a secret.
Charges 26 and 27 – Indecent assault contrary to Section 39(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Rape) Act 2007
48Charge 26 occurred in February of 2009, the day of [MW]’s birthday. He had just got his driver’s licence. [MW] had gone to get some snacks and drinks for Mr Roder and returned to the caravan where [MW] had been living. Mr Roder said to him, “he had a surprise for my birthday to show me”. He had [MW] sit on the bed. [MW] put up an excuse that he had to go to see his girlfriend. He was looked at in a particular way by Mr Roder, such that, after seeing that look, [MW] complied with Mr Roder’s request, being, to take his pants off. Mr Roder rubbed both of their penises together and subsequently ejaculated on [MW]’s penis. Mr Roder said to him after he had ejaculated that he hoped that he was happy with the present that he had given him.
49Charge 27 occurred later in 2009. [MW] was in the caravan watching a video called “Buffy the Vampire Slayer”. He could not remember what happened after Mr Roder entered, but subsequent to being given leave under s 32 to revive his memory from his statement, [MW] told the Court that Mr Roder had moved his hand down into his boxers, fondled his penis and said to him he wanted to see him erect again, as he would then know he was enjoying it.
Conclusion
50Analysing the individual crimes as detailed above, I have concluded that as to the criminality and moral culpability of Mr Roder in regard to the incest charges, the offences committed against [EW], being Charges 2, 5 and 6, and the offences committed against [MW], being Charges 13, 15, 16, 19, 22 and 24, that each such charge should be classified as a high-end offence.
51As to Charges 14, 17 and 18, indecent act with a child under 16, s47(1), against [MW], I would classify each of those as being at a high level of culpability.
52In regard to the balance of the charges, being the indecent act charges under s47 against [EW], Charges 1 and 3, I would classify the culpability as moderate to high. I would give the same classification in regard to [MW], in regard to both the indecent act charges respectively pursuant to s47 and s49, being Charges 20 and 23, and the indecent act charges pursuant to s39, being Charges 26 and 27.
Plea
53Mr Anger, in the plea, accepted that there was no alternative, given the seriousness of Mr Roder’s crimes, for anything but a gaol sentence with parole. Mr Anger accepted that the serious sexual offender legislation applied to all of the charges and further that the Sex Offenders Registration Act 2004 provisions applied to his client.
(a) Mr Anger urged the Court not to pass a sentence which was crushing, and submitted that in the circumstances, the principle of totality was particularly important. In this regard, and in particular, as to the operation of s14 of the Sentencing Act, Mr Anger referred the Court to The Queen v Piacentino (2007) 15 VR 501, [35].
(b) Mr Anger put the personal history of Mr Roder as demonstrating:
(i)limited unrelated priors, certainly no priors for sexual offences against children;
(ii)Mr Roder came from a good family and enjoyed a good upbringing;
(iii)he has been a hard worker all his life;
(iv)he is doing particularly well in gaol, undertaking programs that are indicated for him and courses and, further, working.
(c) Delay – Mr Anger said delay must be taken into account in mitigation. It is four-and-three-quarter years from when he was first arrested in January of 2020. The reasons for this delay were no fault of Mr Roder; however, of course, in such period we have had to endure in the justice system the impact of COVID, issues with having matters listed on circuit, in particular, at Latrobe Valley, the matter being listed for trial in September of 2023 and given my ruling as to directions relevant to tendency, an appeal to the Court of Appeal in this State in October of 2023 and subsequently, subject to an appeal which was not determined by the High Court until 17 April 2024. I accept the submission of Mr Anger that there was no fault in regard to any of this of Mr Roder and I take such delay into account by way of mitigation. Of course it must be remarked that following his conviction in the Sears[10] matter on 7 September 2023, he has been serving a sentence, albeit that this trial was still hanging over him.
(d) I accept that there is no pre-sentence detention to be taken into account, given that Mr Roder has been serving the sentence for a unrelated conviction from September 2023, before which he was on bail.
[10]DPP v Sears (a pseudonym) [2023] VCC 2450, unreported, 19 December 2023
Report of clinical psychologist, Ms Steffens and Verdins[11]
[11]R v Verdins & Ors (2007) 16 VR 269
54On the further plea on 6 November of this year, Exhibit 4 was tendered, being the report of Courtney Steffens, clinical psychologist, dated 24 September 2024.
55As to principle 5 of Verdins (2007) 16 VR 269, [32], the Prosecution have no issue given the degree of depression and PTSD, that it is appropriate to take into account on a moderate basis, principle 5 of Verdins, and in this regard, paragraph [149](b) of Exhibit 4 is referred to.
56As to the potential for exacerbation and the operation of principle 6 of Verdins, allowance was called for by Mr Anger in regard to what was described in paragraphs [146] and [147] of Exhibit 4 as the potential for such. Having considered the report, I am not satisfied, upon the rigid standard required, that principle 6 should be applied.
57As to principles 3 and 4, I would likewise reject Mr Anger’s submission that a moderate discount should be made by way of mitigation in regard to both the need for specific and general deterrence. Analysing the report to the required standard, I see no basis for a determination that a sentence encompassing general and specific deterrence should in any way be mollified. I find, despite the diagnosed personality vulnerabilities (see paragraph [122] Exhibit 4), there has been no treatment history and no diagnosis of major mental disorder prior to him going to prison in December 2023 (see Item 5, page 5 Exhibit 4).
58What is evident from the report and diagnosis is that Mr Roder sees himself as a “helper” or “rescuer”. Indeed, he has had, on his own reporting, enduring relationships and friendships where he describes how he treats others with “kindness” and that he will “do anything for others” [46].
59While he attested to a normal sex drive and emphatically denied to Ms Steffens any sexual attraction to children ([43]), the facts, as found by two Juries, speak otherwise. It is to be noted that in regard to the current complainants, he described them as compulsive liars [77].
60Actually, I consider that the reality here is that Mr Roder is a person who is very active sexually, who is keen to be involved in sexual activity when, wherever and with whom he can achieve it. That is, be it the fifteen-year-old young female for whom he is now serving a sentence in regard to his crimes committed upon her, his various partners, his defacto spouse or at the time with either of the two male children of his defacto, being the complainants here, he is happy to take any opportunity for his own sexual gratification.
61Fortunately, the risk of future offending will, despite his denials, be reduced by the prison sentence to be imposed by this sentence and the likelihood that he will be unable in the future to establish relationships with young children where he has such overwhelming control and capacity for psychological coercion of young children.
62It goes without saying that having run this trial and still being in denial (to both of which he is totally entitled), he does not get the benefit in sentencing of any remorse.
63I accept the instructions that Mr Roder put to Mr Anger that he intends to undertake any treatment recommended for him (see [145], Exhibit 4) and indeed, to comply with any requirements under the Serious Sex Offenders’ reporting requirements [78]. However, in regard to his rehabilitation, my assessment is one that is very guarded.
64In the circumstances, there is no pre-sentence detention to take into account in this sentence.
65There were no other mitigating factors put forward by the defence.
Other authorities
66As to the authorities detailed to me by both counsel, I have considered the same, and as was said by the Court of Appeal in Hasan v The Queen (2010) 31 VR 28, at [47]:
“Following an appropriate study of comparable cases, … the judge will be in a position to identify the boundaries marking the range within which the particular sentence must fall. Up to this point, the exercise will have been a largely objective one, but with an element of the subjective introduced by the process of instinctive synthesis … .”
DPP v Dalgliesh (a pseudonym)
67As detailed by the High Court in DPP v Dalgliesh (a pseudonym) (2017) ALJR 91, at 1063, 1072, [49], Mr Roder is entitled to individualised justice and the imposition of a just sentence in regard to each of these charges, based upon the facts of each charge.
68Given you are receiving this sentence remotely, Mr Roder, you need not stand up.
Sentence
69Mr Roder you will be convicted of all of the following charges and sentenced as follows for your crimes:
Incest charges
[EW]
70In regard to those offences against [EW], you will be sentenced as follows:
71Charge 2 - For the anal penetration by way of incest of [EW], you will be sentenced to imprisonment of eleven (11) years.
72Charges 5 and 6 – For the digital penetration of [EW], in regard to both of these charges, you will be sentenced on each charge to imprisonment of nine (9) years.
[MW]
73In regard to the commission of fellatio upon [MW] on six occasions, being Charges 13, 15, 16, 19, 22 and 24, you will be sentenced on each charge to nine-and-a-half (9.5) years’ imprisonment.
Indecent act with a child under 16 – Section 47
[EW]
74Charge 1 – For the massaging of [EW]’s buttocks represented in this charge, you will be sentenced to imprisonment of one (1) year.
75Charge 3 – For the grabbing of [EW]’s penis as represented in this charge, you will be sentenced to imprisonment of nine (9) months.
[MW]
76Charge 14 – For having [MW] masturbate you, you will be sentenced to imprisonment of two (2) years.
77Charge 17 – For having [MW] masturbate you, you will be sentenced to imprisonment of two (2) years.
78Charge 18 – For having [MW] masturbate you to ejaculation, you will be sentenced to imprisonment of two-and-a-half (2.5) years.
79Charge 20 – For touching [MW]’s genitals, you will be sentenced to imprisonment of nine (9) months.
Indecent act with a child under the age of 16 or 17 – Section 49
80Charge 23 – For holding the penis of [MW], you will be sentenced to imprisonment of nine (9) months.
Indecent act – Section 39(1)
81Charge 26 – For the rubbing of your penis upon [MW]’s penis and ejaculating upon his penis, you will be sentenced to imprisonment of two (2) years.
82Charge 27 – For fondling [MW]’s penis, you will be sentenced to imprisonment of nine (9) months.
Serious Sex Offender Legislation and Cumulation
83As pointed out by Mr Anger, there is no suggestion by the Prosecution, under the Serious Sex Offender legislation, that a disproportionate sentence should be handed out to you pursuant to the provisions of s6D(a).
84Section 6E applies to all of the charges of which you have been found guilty.
85As detailed in R H McL v R (2000) 203 CLR 452, at 476-477, [75]-[76], Brennan J stated that sentencing judges need to be astute not to undermine the legislative policy inherent in s6E.
86There is always a tension in this regard in applying the totality principle, as detailed by Redlich J in John Gordon (a pseudonym) v The Queen [2013] VSCA 343 [74], when he said:
“…This tension between the policy underlying s 6E and the principle of totality is difficult to reconcile. … .”
87Doing as best as I can to deal with such tension, I make the following Orders as to cumulation:
88The base sentence in this sentence will be Charge 2, relative to [EW], which is a sentence of eleven years.
89I order that two (2) years of the sentences in regard to each of the incest offences against [MW] being Charges 13, 15, 16, 19, 22 and 24 be served cumulatively upon each other, and upon the base sentence.
90I order that one (1) year in regard to each of Charges 5 and 6 being incest offences against [EW] be served cumulatively upon all of the other cumulative orders made and the base sentence.
91The total effective sentence after the orders made for cumulation will therefore be twenty-five (25) years.
92All of the sentences are imposed in regard to serious sexual offences. In regard to each charge Mr Roder is sentenced as a Serious Sexual Offender and a notation to that effect in regard to each charge will be recorded in the records of this Court.
93Given that Mr Roder is currently serving a sentence of five years and one month with a non-parole period of three years and five months passed by me on 19 December 2023, and anonymised as DPP v Clayton Sears, VCC 2450, it is necessary, pursuant to s14 of the Sentencing Act 1991, for me to set a new single non-parole period. Pursuant to s14 I determine that the single non-parole period to be now fixed pursuant to s14, encompassing all offences in this indictment and in Indictment K1274995, will be eighteen (18) years to be served from 19 December 2023. I note therefore that from 19 December 2023 that Mr Roder has served 344 days of this single non-parole period.
- - -
8
0