Director of Public Prosecutions v Roe (a pseudonym)
[2022] VCC 533
•10 March 2022 13 April 2022
| IN THE COUNTY COURT OF VICTORIA AT LA TROBE VALLEY | Revised Not Restricted Suitable for Publication |
CRIMINAL DIVISION
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAMES ROE (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE CHAMBERS | |
WHERE HELD: | La Trobe Valley | |
DATE OF HEARING: | 20, 21, 22, 25, 26, 27, 28 & 29 October 2021 and 3, 4, 5, 8, 9, 10 & 11 November 2021 | |
DATE OF PLEA: DATE OF SENTENCE: | 10 March 2022 13 April 2022 | |
CASE MAY BE CITED AS: | DPP v Roe (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 533 | |
REASONS FOR SENTENCE
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Subject: Criminal law – Sentence
Catchwords: Sentence following trial; three charges of sexual penetration of a child under 12, thirteen charges of sexual assault of a child under 16, one charge of attempted sexual assault of a child under 16; five separate child victims from two families; significant victim impact; gross breach of trust; general deterrence, just punishment, denunciation and protection of the community paramount sentencing purposes; lack of relevant priors, prospects of rehabilitation no greater than reasonable; standard sentence provisions, serious sexual offender provisions; presumption of cumulation; principle of totality
Legislation Cited: Crimes Act 1958; Sentencing Act 1991; Sex Offenders Registration Act 2004; Criminal Procedure Act 2009
Cases Cited: Cheung v. The Queen (2001) 209 CLR 1;
R. v. Verdins (2007) 16 VR 269; Brown v. The Queen [2019] VSCA 286;
DPP v. Hum(a pseudonym) [2022] VSCA 57
Sentence: 16 years, 8 months’ imprisonment with a non-parole period of 10 years
APPEARANCES: | Counsel | Solicitors |
For Director of Public Prosecutions | Mr S. Devlin (plea and sentence) | Office of Public Prosecutions Victoria |
For the Accused | Mr N. Goodfellow with Mr C. Tom (plea and sentence) | Victoria Legal Aid |
HER HONOUR:
1
James Roe,[1] on 11 November 2021, you were convicted by a jury of
three charges of sexual penetration of a child under 12 years contrary to s49A of the Crimes Act 1958 (‘the Act’); 13 charges of sexual assault of a child under the age of 16 contrary to s49D(1) of the Act and an attempted sexual assault of a child under the age of 16 contrary to s321M and s49D(1) of the Act. You were acquitted of charges 17 (a charge of common assault) and 19 (sexual assault of a child under 16). The victims of your offending were five children, ranging in ages of between five and nine years, from two families.
[1] A pseudonym.
2It is now my task to sentence you for the offending in respect of which you have been found guilty.
3Before I do so, it is necessary to provide a preliminary overview of the background to your offending.
4Marisa Newell[2] is the mother of five children, including three daughters. You are the former husband of Ms Newell’s aunt and your sons, Timothy[3] and Mitchell Roe[4], are her cousins. Ms Newell’s three daughters, who were the victims of your offending, are:
· Arabella Newell,[5] who was born in April 2010, and was nine years old at the time;
·
Eve Newell,[6] who was born in January 2012, and was between
seven and eight years of age at the time; and
· Summer Newell,[7] who was born in February 2014, and was five years old at the time of your offending.
[2] A pseudonym.
[3] A pseudonym.
[4] A pseudonym.
[5] A pseudonym.
[6] A pseudonym.
[7] A pseudonym.
5Between 2019 and 2020, you lived in a residential property in Morwell that was owned by your son, Timothy. Timothy worked in Melbourne during th week and only lived in his home in Morwell on weekends. Through Ms Newell’s contact with Timothy, she and her children came to spend time with you, including outings, such as boating on Lake Narracan, camping and motorbike or dirt bike riding. On occasions the children would spend time with you alone at the house in Morwell, including overnight stays.
6In January 2018, Diana Muller[8] and her children moved into the house next door to you in Morwell. Her two daughters, Matilda[9] and Regan[10], are the other victims of your offending. Matilda Ambrose was born in May 2012, and was seven years old at the time of your offending. Her sister, Regan Ambrose, was born in October 2014, and was five years old at the time of your offending.
[8] A pseudonym.
[9] A pseudonym.
[10] A pseudonym.
7Between February 2019 and 23 February 2020, Ms Muller’s children also went on camping and other outings with you and Timothy. More often, Ms Muller’s children would come over to your house in Morwell, where you were responsible for them, including times Ms Muller asked you to care for one or other of her daughters when she had other commitments.
8You were born in June 1968 and were aged between 50 and 51 at the time of the offending. You have no prior criminal history for sexually offending against children.
Circumstances of Offending
9I turn now to discuss the circumstances of your offending.
10You are to be sentenced on a basis consistent with the jury’s verdict.[11] The jury rejected the account you gave in your record of interview in which you denied sexually abusing the victims. You are therefore to be sentenced upon the accounts given by the victims in relation to each charge in respect of which you have been found guilty.
[11]Cheung v The Queen (2001) 209 CLR 1, 9 [6]
Eve Newell
11Charges 1 - 5 on the Indictment relate to offending against Eve Newell between 15 February 2019 and 23 February 2020. As stated, Eve was between seven and eight years of age at the time.
12On one occasion between those dates, when Eve was at your home in Morwell you asked if you could kiss her goodnight. She had her tongue out of her mouth at the time. You proceeded to lick her tongue. This act is the subject of Charge 1, sexual assault of a child under 16.
13
On another occasion Eve and her sister, Summer, were together in the bath at your home in Morwell, being supervised by you. You picked Eve up out of the bath, with one hand behind her back and the other beneath her legs. You then leant down and licked her vagina. Eve says she felt, 'slobber', on her vagina. This is the conduct that is the subject of Charge 2, sexual assault of a child
under 16.
14
There was an occasion when Eve was sleeping alone with you in your bed in the Morwell house when you placed her hand on your exposed penis. Eve says she felt, 'slobber', come from your penis. This conduct is the subject of
Charge 3, sexual assault of a child under 16.
15On another occasion Eve was on the couch at the Morwell house with her sisters, who were asleep. You pulled her pants down and licked her vagina. This conduct is the subject of Charge 4, sexual assault of a child under 16.
16Charge 5, sexual assault of a child under 16, is a course of conduct charge in relation to Eve. It is alleged that over approximately one year you repeatedly touched her on the vagina over her clothes. Eve recalls you doing this in your car on one occasion in May 2019 when she woke up and had your hand between her legs, touching her vagina, while you were driving. She told you to stop and you did. On another occasion you touched her this way when she was in your tent with Summer and on the last occasion, on a strip of sand after you had been boating. Again, she told you to stop and you did.
17
The last charge in relation to Eve is Charge 6, sexual penetration of a child
under 12 years. This occurred on an occasion when Eve was on the couch in her house in Pakenham when you pulled her pants aside, and after rubbing her vagina, you inserted your finger into her vagina, moving it up and down.
Summer Newell
18I turn now to Summer Newell, who was five years old at the time of your offending.
19On the same occasion you sexually assaulted Eve in the bath by picking her up and licking her vagina, Eve says she saw you try to do the same thing to Summer. You stopped when Summer said, 'No', and asked you to stop. This conduct gives rise to Charge 7 - attempted sexual assault of a child under 16.
20
On another occasion between 15 February 2019 and 23 February 2020, when the children were sleeping on the couch at your house in Morwell, you picked Summer up from the couch and carried her into your bed. You then put your hand inside her pyjamas and underwear and rubbed her vagina. This conduct gives rise to
Charge 8, sexual assault of a child under 16. Your son, Timothy, recalls Summer sleeping in your bedroom on two occasions.
21
The last incident involving Summer occurred between 1 May 2019 and
7 January 2020 when you were camping with the Newell children in Yarram. You were alone in the tent at night-time with Summer. You let her play games on your phone until she fell asleep on her camp bed. She felt you put your hand inside her pyjamas, underneath her underwear, and rubbed her vagina. This is the conduct that is the subject of Charge 9 - sexual assault of a child under 16.
22Summer recalls this occurred on other occasions, inside a tent whilst camping. You are not charged in relation to these other incidents, but they are context to your offending against Summer.
Arabella Newell
23I now turn to Arabella Newell, the eldest of the three girls, who was nine years old at the time of your offending. You were found guilty of two charges of sexual offending against Arabella.
24On one occasion between 14 April 2019 and 31 October 2019, when Arabella was lying on your bed watching television and playing with your phone, you spread her legs apart and rubbed her vagina with the side of your hand over her pyjamas. You rubbed her a number of times, stopped and then started again. This continuing act is the basis of Charge 10, sexual assault of a child under 16.
25You then lifted up her pyjamas, exposing her groin. You then lent down and kissed this area. This is the conduct that is the subject of Charge 11 - sexual assault of a child under 16. You asked Arabella if this felt good, to which she replied, 'No, it didn’t', and asked you not to do it again. You then kissed her on the cheek. Arabella says you tried to touch her vagina again that day, when you were watching a movie, but she managed to get away from you. You are not charged with that conduct, but it is part of the context of your offending against Arabella.
Complaint to Marisa Newell
26You told Eve and Arabella separately not to tell anyone what you were doing, that it was, 'your secret'.
27On 28 February 2020, the night of Summer’s sixth birthday, as she was going to bed, and was giving her mother a hug, Summer told Ms Newell that, 'Sometimes when we stay at James’ place he touches my rude spot'. Summer asked, 'Mummy, we don’t keep secrets do we?', and told her mother that, ‘James said that if I tell you, adults get cross'.
28The next morning Ms Newell spoke with her other daughters and asked if you had touched them. Arabella told her you had tried to touch her and spread her legs, but that she said, 'No', and that she, 'didn’t let him touch me, I pushed him away'.
29Eve was initially reluctant to discuss what you had done to her. She first told her mother that nothing happened, but after Ms Newell reassured her and said that she needed to know if you had touched her, Eve replied, 'she didn’t want to get James into trouble', but that she had, 'touched his rude spot', and that, 'slobber was coming out of it'. When Ms Newell told Eve what you did was wrong and that they needed to report it to police, Eve said that she 'didn’t want to go to the police', that 'she didn’t want to get James into trouble'.
30Ms Newell attended the police station later that day to report your offending. Each of the children was subsequently interviewed by Morwell SOCIT and made their recorded statements to police.
31You were interviewed by police on 2 March 2020 and denied all allegations of sexual offending against the three girls. You described yourself as playing a parenting role to Arabella, Eve and Summer, caring for them on a semi-regular basis at your house. You agreed you took them on camping trips in Yarram, dirt riding and frequent trips to the park and had a number of toys and devices at your house for the children to play with.
The Ambrose family
32
After Ms Muller moved into the house next door, she met you after your son, Timothy, made a point of going around to introduce himself in March 2018. At some point you offered to watch the children if Ms Muller ever needed a babysitter.
Ms Muller took up this offer after 21 February 2019, and from that date you would regularly watch the children during the day. You would also pick Matilda up from school and bring her back to your place. There were occasions where the children would remain there, having dinner with you, returning home after dark, although this had not been pre-arranged with Ms Muller.
33There were other occasions where the children would sleep over at your house, including on 14 and 15 March 2019. Ms Muller gave evidence that you always had new toys or movies for the children to watch and that you would take Matilda to McDonalds every time you picked her up from school and bought her toys from Kmart.
Matilda Ambrose
34
Your offending against Matilda Ambrose involved a course of conduct over the period of approximately one year between 21 February 2019 and
13 February 2020, when she was seven years old, where on a number of occasions you:
(a) touched her vagina over her clothing, which is the subject of Charge 12 - sexual assault of a child under 16, charged as a course of conduct;
(b) introduced your finger into her vagina, causing her pain, which is the subject of Charge 13 - sexual penetration of a child under 12, charged as a course of conduct; and
(c) introduced your tongue into her vagina, which is the subject of Charge 16 - sexual penetration of a child under 12, which was also charged as a course of conduct.
35Leading up to this offending, you began touching Matilda in different places all over her body, touching her on the chest area, kissing her on the lips and attempting to put your tongue in her mouth. Again, this is not charged conduct, but is the context in which your offending against Matilda occurred.
36The charged course of conduct occurred on too many occasions for Matilda to recall in detail. However, she was able to detail a number of specific events. On one occasion where, after putting your finger into her vagina, you took her to the shops to buy toys, and then brought her back home and again penetrated her vagina with your finger, despite her telling you to stop. She then ran home. She said she wanted to tell her mother because it had, 'hurt like hell', but you had told her it was a secret.[12] Matilda said you put your tongue in her vagina on an occasion before her birthday in April 2019.[13]
[12]VARE of Matilda Ambrose, dated 5 March 2020, Q/A 76
[13]Ibid, Q/A 147-157
37
The prosecution led evidence of occasions where Matilda states that whilst driving her to school, you, ‘tried to put’, your hand on her lap.[14] The description she gave of you ‘trying to’, touch her on the lap is equivocal as to whether you actually touched her at all, and if so, on the vagina on those occasions. Accordingly, I am not satisfied beyond reasonable doubt that this description of your conduct can form part of the course of conduct for Charge 12 and accordingly, I have not had regard to that evidence in sentencing you on Charge 12 - sexual assault of a child
under 16.
[14]Ibid, Q/A 47-48
38Another specific instance of offending occurred on 14 March 2019 when the children had slept over at your house. On that occasion you licked the outside of Matilda’s vagina, but she says it did not, 'go in the hole'. This conduct is the subject of Charge 14 - sexual assault of a child under 16.
39On 13 February 2020 Ms Muller had to take another child to hospital so the children had stayed overnight at your place. On this occasion Matilda and Regan were with you in Timothy’s room. You used this occasion to force Matilda to touch your penis. This gives rise to Charge 15 - sexual assault of a child under 16. You sustained an erection as a result.
40Later that evening when Matilda and Regan were sleeping in your bed, you removed Matilda’s clothing and licked her vagina, including by pushing your tongue firmly into her vaginal opening. This conduct is encompassed by the course of conduct. Charge 16 - sexual penetration of a child under 12.
41You repeatedly told Matilda to keep your conduct a secret.
Regan Ambrose
42I turn now to your offending against Regan Ambrose. Charge 18 - sexual assault of a child under 16, is the subject of an occasion on 12 February 2020, when Regan, then aged five, was asleep in your bed with her brother. The children were staying overnight at your house as Ms Muller was at the hospital with Matilda. On that occasion you woke Regan, touching her hands, shoulder and neck and licked her vagina over her underwear.
Police Investigation
43After Ms Newell spoke with police on 29 February 2020, the police executed a search warrant at your Morwell address on 2 March 2020. On that date investigating police spoke with Ms Muller and explained that you had been arrested and obtained Ms Muller’s permission to speak with her daughters. Later that night, Ms Muller spoke separately with Matilda and Regan.
44
Regan told her mother that she had secrets with you. Regan said you gave her lollies, games and other treats. When asked by her mother if you had touched her, she replied, ‘Yes’. Regan pointed to her head, arms, bottom, chest and vagina.
Ms Muller asked Regan to show her how you touched her vagina, and Regan pulled her legs apart and rubbed her vagina over her pants.
45
Ms Muller spoke separately with Matilda. Matilda agreed to tell her mother her secrets provided she locked the door. Matilda told her mother that when she lies down to play on your iPad, you pull her pants down and play with her vagina. She said you put your fingers in her vagina and that she says, ‘No’, but that you do it anyway. Matilda told her mother you forced her to play with your penis. Matilda said you told her it was a secret and that if she told her mother she would get into trouble and you would not give her any more toys. The next day,
3 March 2020, Matilda also told her mother that you licked her vagina.
46Ms Muller spoke with police investigators and arranged for her daughters to participate in a video recorded interview on 5 March 2020.
47You were interviewed by police in relation to these matters on 6 March 2020, and in accordance with your rights, made, ‘no comment’, in respect of the allegations.
Sentencing on ‘Course of Conduct’ Charges
48
As stated, you were convicted of four course of conduct charges: Charge 5 - sexual assault of a child under 16 involving Eve; and in respect of
Matilda Ambrose, Charge 12 - sexual assault of a child under 16 (touching her vagina over her clothing); Charge 13 - sexual penetration of a child under 12 (introducing your finger into her vagina); and Charge 16 - sexual penetration of a child under 12 (introducing your tongue into her vagina).
49A finding of guilt by a jury on a course of conduct charge does not allow me to infer that the jury accepted all the evidence. The jury may have reached their verdict by relying on different incidents. There is no requirement for a jury to unanimously agree on the incidents that proved a course of conduct charge. Each juror must have been satisfied that the incidents of sexual assault or sexual penetration, which they found occurred, amounted to a course of conduct in respect of each of the four charges.
50Pursuant to s5(2F) of the Sentencing Act 1991, I must impose a sentence that reflects the totality of the offending that constitutes the course of conduct. The Note to that section states:
If a jury finds a person guilty of a course of conduct charge, in making findings of fact relevant to sentencing, the sentencing judge determines the course of conduct in which the person engaged and by reference to which the person will be sentenced.
On the plea, counsel made submissions on the question of the findings I should make, particularly in relation to Charges 13 and 16.
51In accordance with the principals enunciated in Cheung,[15] I must be satisfied to the criminal standard as to the conduct that constitutes each of the course of conduct offences. However, there is no requirement to make a finding as to the actual number of times the offending occurred. This is made clear by clause 4A(10) of Schedule 1 of the Criminal Procedure Act 2009, which states that it is not necessary for the prosecution to prove any particular number of incidents of the offence. Course of conduct charges permit the charging of more than one incident in circumstances where a complainant is unable to distinguish one act of abuse from another, given the repeated nature of the offending.
[15]Cheung v The Queen (2001) 209 CLR 1, 9 [6]
52In relation to Charge 5, being a charge of sexual assault involving you repeatedly touching Eve on the vagina over her clothes, I am satisfied this conduct occurred on too many occasions for Eve to recall with specificity. However, I am satisfied this occurred on an occasion in May 2019 when she was in your car after dirt-bike riding, when you slid your hand down her thigh and touched her on the vagina over her clothing while you were driving. I am satisfied this happened on more than one occasion in the car while you were driving and that she would tell you to stop. I am also satisfied you did so while she was in your tent on one of the occasions you went camping with the children and that the last time this occurred was when she was on the sandbank after you had been boating.
53In relation to the course of conduct charges involving Matilda, consistent with the jury verdict, I am satisfied you committed the offences constituting Charges 12, 13 and 16 on a few occasions, and certainly more than once. However, I am not satisfied that the number of occasions specified by Matilda in her evidence, of you digitally penetrating her vagina approximately 14 times and orally penetrating her vagina 15 times, is a reliable estimate of the number of occasions.
54I am satisfied that you digitally penetrated her vagina on an occasion where you took her to the shops and allowed her to select toys, and did so again after returning to your home and that the incident ended with her pushing you away and running home. Consistent with the jury verdict, I am satisfied this conduct occurred on a number of other occasions, however, I cannot be satisfied it occurred with the consistency or regularity that Matilda’s evidence suggests.
Offence Gravity and Victim Impact
55
I turn now to discuss the gravity of the offence and the victim impact. Without doubt, this was very serious offending. The offence of sexual penetration of a child under 12 is an objectively serious crime, as gauged by the maximum penalty of
25 years’ imprisonment. As the authorities repeatedly highlight, sexual crimes against children are abhorrent.
56Children repose enormous trust in adults, particularly at times they know their parents have allowed the adult to supervise and care for them. Your offending fundamentally breached that relationship of trust. Each of the five victims were entitled to feel safe when they were on outings with you, were in your home, and in respect of Charge 6 relating to Eve, in her home. You betrayed that trust for your own sexual gratification. You also breached the trust the victims’ mothers reposed in you to care for and supervise their children on occasions.
57The sexual penetration offences are particularly grave. There is no hierarchy of seriousness for penetrative offences. Whilst digital and oral penetration does not ordinarily involve the same risks associated with penile penetration, that does not necessarily mean the offending is less serious. An assessment of the gravity of the penetrative offending involves a consideration of the particular circumstances in each case. Here the most striking feature that aggravates the penetrative offences is just how young and vulnerable the victims were: Matilda Ambrose was only seven years old; Eve Newell was between seven and eight years old.
58
Indeed, all the victims were inherently vulnerable given their age. There was a significant disparity in your ages: you were 50 to 51 years old; the victims were between five and nine years of age. Because they were so young, the victims were powerless to stop your offending. Moreover, you repeatedly told
Eve, Arabella and Matilda not to tell anyone about your conduct, that it was to be kept a secret. You also offered the victims inducements, including toys and gifts, to facilitate your offending and to prevent disclosure. Your offending was accompanied by manipulation and coercion of the young victims.
59This is perhaps best illustrated by the fact that when Ms Newell asked Eve if anything had happened, she was reluctant to discuss what you had done to her, saying she did not want you to get into trouble. Summer told her mother that you said, 'adults would get cross', if she said anything. Matilda said you told her she would get into trouble if she said anything to her mother, and that you would not give her any more toys. For these young victims, your conduct left them feeling confused and uncertain, and played a significant role in preventing any earlier disclosure of your offending.
60
You sexually offended against not one but five separate child victims over the course of one year. I accept there was no real show of force, violence or threats associated with your abuse. Rather, you took advantage of the victims’ innocence and the fact they trusted you and were spending time with you. You must have known that what you were doing was extremely wrong. This was not one-off offending. You had ample time to reflect on your conduct over the course of the year and stop. Your culpability increased with each subsequent act of
sexual abuse. You bear a high moral culpability for your conduct in sexually abusing the five children over that period of time.
61The magnitude of your conduct and the impact on the victims is reflected in the victim impact statements. As the victim impact statements attest, the damage caused by your offending has been profound. There is a presumption of harm caused to children by sexual offending. That presumption is borne out in this case.
62Eve’s victim impact statement speaks about feeling scared and no longer feeling safe at night. She says she worries about her sister and her mother. A graph drawn by Eve demonstrates how significantly your offending has impacted on her feelings of fear, happiness, her level of anger and her ability to sleep. Similarly, Summer’s statement reflects her fear and worry and how she is now too frightened to sleep in her bed alone. Arabella says she felt scared and upset when you offended against her, and that she now gets flashbacks and has trouble trusting people, mainly old men. She says you have made her feel, 'gross to look in the mirror', and has changed the way she dresses. She now finds it hard to talk to people and feels anxious. She demands to know why you did this to her. Although she feels you have messed up her life, her victim impact statement concludes by saying she is strong and will never give up.
63You also abused the trust Marisa Newell placed in you. Although she bears no responsibility for your crimes, she feels guilty and cannot help but think she should have known what you were doing. Understandably, she has lost trust in people and worries for her children, their safety and their futures.
64Matilda’s victim impact statement highlights just how scared, angry, frightened and sad she feels. She says she felt scared going to school and to her favourite park because it is close to your house. Your crimes have impacted on her feelings of safety. Regan also says she feels scared and cried because of what you did. She had to sleep with her brothers to feel safe and has bad dreams.
65Diana Muller eloquently describes the multi-faceted impact of your offending on her family. She says the home she found was meant to be a safe haven, but you ripped that away from them. She describes the profound changes she has seen in her daughters: their loss of innocence; their loss of trust; their loss of growing independence; and their anger, leaving her feeling lost and helpless. Ms Muller captures the enduring impact of your offending, saying life will never be the same and the pain will never go away.
66Your offending has impacted on the lives of these two families significantly. I have taken the victim impact into account as one of the factors to which I have regard in sentencing you.
Personal Circumstances
67I turn now to discuss your personal background.
68You are now 53 years of age. As stated, you were between 50 to 51 at the time of the offending. You were born in Waratah, New South Wales, and were raised in the Newcastle region. Your childhood was uneventful and you enjoyed a good relationship with both parents. You were the youngest of four male siblings, who have sadly now all passed away.
69Your mother died in 1992 in a motor vehicle accident. You were a passenger in the vehicle at the time, and struggled with the trauma in the aftermath of that incident. Your father passed away in 2014 and your eldest brother passed away following an accidental drowning when you were around 30 years old. After the death of your father in particular, you struggled with grief and turned to alcohol and binge drinking to cope.
70As a child, your parents were hard-working and you describe being, ‘left to my own devices’.[16] You did not have many childhood friends. As an adult you report being a, ‘fairly quiet person, a loner’.[17]
[16]Psychiatric report of Dr S Khan dated 25 January 2022 at [15]
[17]Ibid, at [15]
71You have no professional training or qualifications, but undertook welding and steel fabrication courses at TAFE and have worked in a variety of roles, including spray painting and in manufacturing.
72You have previously been diagnosed with bipolar disorder. In the early 90s you had a psychiatric admission in Newcastle after suffering a manic episode in the context of substance abuse. You were treated with lithium and antidepressants and remained on medication for one to two years, then ceased altogether. This was your only admission for psychiatric treatment.
73Your first long-term relationship was with your high school girlfriend, who you married and lived with for 20 years. Together, you had four children, however the relationship ultimately ended for reasons you attribute to your mental illness, depression and alcohol abuse. You had a short term relationship with another woman, with whom you have a son but from whom you are estranged. You now have 11 grandchildren ranging in ages up to 17 years. You relocated to live in Morwell in order to be closer to your family and grandchildren. You initially resided in Seaford before moving into your son’s house in Morwell.
74You have no criminal history for sexual offending, including sexual offending against children. Your only criminal prior in Victoria is for being drunk in a public place and resisting police in 2014, for which you were convicted and fined. You told Dr Khan you had a criminal history from New South Wales, dating back to 1981, including for dishonesty and drug offences, and a common law assault in 2008. I have attached little weight to your prior convictions for unrelated offending in sentencing you for these offences.
Psychiatric and Mental Health
75
You were assessed for the purposes of the plea by consultant forensic psychiatrist,
Dr Khan. Dr Khan’s report, dated 25 January 2022, was tendered on your plea.
76
During your assessment with Dr Khan you maintained your innocence. You told
Dr Khan you had, 'no physical contact with the children, other than to help them wash their hands'.[18] You denied using gifts to entice the children into giving you sexual favours. You denied being in bed with any of the children, saying that your sons were present in the home. When directly asked about the allegations of sexual abuse, you told Dr Khan that the children could have been coached by adults, 'led by their mother or [your] ex-partner, in order to obtain housing or money'.[19] You made comments which Dr Khan interpreted as you seeking to suggest the children may have experienced sexual abuse at the hand of other adult males.[20]
[18]Psychiatric report of Dr Khan dated 25 January 2022, at [33]
[19]Ibid, at [34]
[20]Ibid, at [34]
77You told Dr Khan that whilst you denied the offences, you would comply with any reporting obligations under the sex offender registration legislation and would attend any treatment programs ordered by the court; that you would, 'agree to any sentencing conditions in order to help with parole/release, or a shorter sentence'.[21]
[21]Ibid, at [36]
78
Dr Khan also provided a risk assessment of your potential for recidivism. Using the
Static-99 risk assessment tool, Dr Khan assessed you in the low-moderate risk range relative to other sexual offenders. Dr Khan also assessed you using the
Risk for Social Violence Protocol (RSVP) which assesses an individual’s propensity to engage in further sexual violence. Using the RSVP tool, Dr Khan assessed you at a low-moderate risk. Dr Khan notes that your willingness to engage in treatment offers an opportunity for you to engage in rehabilitation programs to reduce the risk you pose to children. Dr Khan states that while there is evidence of you using, 'psychological coercion and grooming of the children you had access to', he assesses your offending as, 'opportunistic, with you having easy access to children'.[22]
[22]Ibid, at [55]
79Dr Khan states you report having a history of substance abuse, including the use of cannabis, LSD and speed in your late teens to early 20s. However, after your psychiatric admission, you ceased all substance abuse. You told Dr Khan that you began binge drinking after your father passed away in 2014, but that your alcohol abuse has since ceased. Alcohol played no role in this offending.
80
Dr Khan states you no longer present with evidence of any major mental illness. In Dr Khan’s opinion your one episode of psychiatric illness in the early 1990’s was, as reported by you, a result of illicit substance abuse. You have no other relevant psychiatric history and did not present with signs or symptoms of
mental illness during your assessment with Dr Khan.
81As to your offending behaviour, Dr Khan states:[23]
Mr Roe presented with evidence of extreme minimisation and denial of
sexual violence. He denied any responsibility for acts of sexual violence and the consequences of those acts. He displaced the responsibility on to other males who potentially had access to the victims… or that the victims were led or coached by their mothers for financial / material gains. He lacked the capacity to empathise with the plight of the young victims…There was lack of appreciation of his own mental processes, reactions and self-knowledge that place him at risk of sexual violence…There is partial evidence of
serious sexual deviance based on [the] nature of the offending and age of the victims…, [however] there is insufficient evidence available to diagnose him with a paedophilic disorder.
[23]Ibid, at [51]
82
As to future treatment, Dr Khan states you would benefit from psychological treatment for bereavement, anxiety management and social skills. Dr Khan also recommends you engage in specialised sex offence treatment.
Dr Khan observes that your denial of offending, whilst not associated with an increased risk of reoffending, may pose a barrier to meaningful engagement in any offence-specific treatment you undertake.
Matters Relevant in Mitigation of Sentence
83Having assessed the objective gravity of your offending, I now turn to other matters that are relevant in mitigation of your sentence.
84You have been in custody since your arrest on 6 March 2020. Special hearings were conducted between the 7th and 11 December 2020 and the matter first listed for trial on 24 May 2021. However, due to the impact of the pandemic on jury trials that trial date was vacated and the trial commenced in October 2021. This period of delay was through no fault of yours, and I accept that this delay would have caused you additional stress, not knowing the outcome, while these serious charges were hanging over your head.
85
Additional to this burden is the fact that your time on remand has run in parallel to the restrictions and limitations imposed on those in custody to respond to
COVID-19. You have experienced multiple periods in lockdown, as a form of quarantine, during outbreaks of the virus in the prison system. More significantly, you have not had the opportunity to receive personal visits from family, who you would otherwise rely upon for support. Programs and educational opportunities have been affected. I accept that for you, as a first-time prisoner, this is an additional burden of your time in custody. The fact your experience of custody has been isolating and difficult is relevant to sentence and I have taken these matters into account in mitigation.
86
Dr Khan’s report also deals with the impact of custody on your mental health. He states that you have coped with imprisonment over this period, and that since commencing on anti-depressant medication, your mood is good. You denied being the victim of bullying or of having received negative attention from other prisoners, although you remain reluctant to discuss the nature of your offending in a
group setting. Although Dr Khan considers your levels of anxiety and poor coping mechanisms mean that you are likely to struggle in prison, he notes that you are currently responsive to the mental health services available to you in prison.
87In the circumstances, it was not argued that any of the principles enunciated in Verdins[24] have application to your case.
[24]R. v. Verdins (2007) 16 VR 269
88On your behalf, it was submitted that your prior history is of limited, if any, relevance, and that you are otherwise a person of good character. Notably, prior to this offending you had, by and large, led a modest, productive life, marked by hard work until your disability prevented you from continuing in employment. In a reference provided by your neighbour, Ms Judith Smith, dated 4 March 2022, you are described as helpful, quiet and respectful. Ms Smith says she had known you for over four years and was shocked by these charges, saying she found them difficult to believe as she considered you to be a good person. She says she remains supportive of you.[25] Your prior good character entitles you to some degree of moderation in sentence, however the gravity of your offending means that this factor does not carry significant weight.
[25]Exhibit 2 – character reference provided by Judith Smith dated 4 March 2022
89You still maintain that you did not commit these offences. This, of course, is not an aggravating feature and you are not to be punished for running a trial. However, you have demonstrated no remorse or acceptance of responsibility in mitigation. An offender who pleads guilty is entitled to a significant sentencing discount, and you are not entitled to that benefit or discount.
90
I turn now to your prospects of rehabilitation. I accept the opinion of Dr Khan that you are a low-moderate risk of re-offending. You have no underlying psychiatric or other mental health conditions and have an ongoing relationship with your sons, who will provide you with a support structure upon your eventual release from custody. Since being in custody you have undertaken a number of courses; being
vocational courses and other workshops aimed at assisting in the development of life skills, demonstrating a preparedness to engage in programs to assist you into the future.[26]
[26]Exhibit 3 – certificates of completion of courses.
91
Against this, however, you repeatedly sexually abused multiple child victims over the course of a year. You have demonstrated no insight or remorse for your offending or the impact your conduct has had on the lives of these children. As
Dr Khan states, it is difficult to assess how you will respond to monitoring and supervision.[27] You have expressed a willingness to engage in treatment, including offence-specific treatment, however for this to genuinely promote your prospects of rehabilitation, you will need to confront your offending behaviours and the motivations that underlie your offending. You are yet to do so. At present I am unable to assess your prospects of rehabilitation any higher than reasonable. Much will depend on your preparedness to engage in an optimal manner with the
offence-specific treatment recommended by Dr Khan.
[27]Report of Dr Khan dated 25 January 2022, at [54]
92There remains a need for the sentence I impose to deter you specifically from future sexual offending against children.
Other Sentencing Considerations
93
I turn now to other sentencing considerations. Each of the offences of which you have been found guilty, other than Charge 7, which is the attempted sexual assault of a child under 16, are standard sentence offences. The standard sentence for
sexual penetration of a child under 12 is 10 years’ imprisonment. The standard sentence for sexual assault of a child under 16 is four years’ imprisonment.
94
The standard sentencing scheme is established by s5A and s5B of the
Sentencing Act 1991.
The scheme requires me to taken the standard sentence into account as one of the factors relevant to sentence.
95In Brown v The Queen[28], the Court of Appeal made the following statement of principle regarding sentencing for standard sentence offences:
The key new requirement is that a judge when sentencing for a ‘standard sentence offence’ must ‘take the standard sentence into account as one of the factors relevant to sentencing’. This requirement:
·is to be treated as a, 'legislative guidepost', having the same function as the maximum penalty;
·it does not affect the established, 'instinctive synthesis', approach to sentencing;
·it does not require or permit, 'two-stage sentencing'; and
·does not otherwise affect the matters to which the court may, or must, take into account in sentencing'.
[28][20019] VSCA 286 at [4]
96
Further, the only previous sentences to which I may have regard when considering current sentencing practices are those which have been imposed under the
standard sentencing scheme for the relevant offences. In this case, neither counsel were able to discern any cases which would be of assistance in this regard.
97
I have also had regard to the purpose of imposing sentence, as set out in s5 of the
Sentencing Act 1991.
In a case such as this the paramount sentencing considerations are general deterrence, just punishment and protection of the community. In sentencing you the sentence I impose must operate to deter others who may be minded to sexually offend against children who, because they are so young, are vulnerable to sexually predatory behaviour. I must unequivocally denounce your sexual abuse and appalling exploitation of the children who were the victims of your crimes. As was accepted by your Counsel, the objective gravity of your offending warrants an immediate and substantial sentence of imprisonment.
98Pursuant to s6B(2)(a) of the Sentencing Act 1991, you are to be sentenced as a serious sexual offender on Charges 3 to 16 and on Charge 18. Section 6D of the Act requires that the protection of the community be the principal sentencing purpose for those offences. The prosecution does not submit that I should impose a disproportionate sentence to achieve the protection of the community. In the circumstances of this case, I agree with that submission.
99Section 6E of the Sentencing Act 1991 requires that the term of imprisonment imposed on Charges 3 to 16 and on Charge 18 must, unless otherwise directed, be served cumulatively. Whilst I still have regard to the sentencing principle of totality and must ensure that the sentence is not crushing, in doing so I must have regard to the legislative presumption in s6E of the Act. The law requires me to give effect to the objective of s6E to make sentences to which it applies, operate cumulatively rather than concurrently. [29]
[29]See DPP v Hum (a pseudonym) [2022] VSCA 57 at [113 (d)]
100Finally, I have also had regard to the standard sentence of 10 years’ imprisonment as one of the factors relevant in sentencing you on the three charges of sexual penetration of a child under 12. I have also had regard to the fact that two of those offences regarding Matilda Ambrose are course of conduct offences.
101I have also had regard to the standard sentence of four years’ imprisonment as one of the factors relevant in sentencing you on the 13 charges of sexual assault of a child under 16. Again, I note that two of those charges arise out of a course of conduct.
102As stated, the standard sentence is the period specified in the Sentencing Act that is the appropriate sentence for offences in the middle of the range of seriousness, taking into account only the objective factors bearing on the relative seriousness of the offence. It is a legislative guidepost, no more. The instinctive synthesis involved in sentencing still requires the balancing of many factors, including the nature and seriousness of the offending as well as your personal circumstances.
103The individual sentences I have imposed on the charges fall short of the standard sentence due to my assessment of the nature and gravity of the offences, and where I have assessed each offence as falling within the range of seriousness for that offence. I have also had regard to the mitigating effect of other factors I am required to take into account in sentencing you. As indicated, the absence of prior sexual offending, your previous good character in that regard, your personal circumstances and the burden of imprisonment due to the impact of COVID-19, are all relevant in mitigation.
Sentence
104Balancing all the factors to which I have referred, and guided by the standard and maximum penalties for the offences, I sentence you as follows:
105Charge 1, sexual assault of a child under 16 (licking Eve’s tongue) you are convicted and sentenced to 18 months’ imprisonment
106
On Charge 2, sexual assault of a child under 16, being the (incident in the bathroom licking Eve’s vagina) you are convicted and sentenced to
three years’ imprisonment;
107On Charge 3, sexual assault of a child under 16 (placing Eve’s hand on your exposed penis) you are convicted and sentenced to three years’ imprisonment;
108On Charge 4, sexual assault of a child under 16 (licking Eve’s vagina) you are convicted and sentenced to three years’ imprisonment;
109
On Charge 5, sexual assault of a child under 16 as a course of conduct (touching Eve on her vagina over her clothes), you are convicted and sentenced to
two years, 10 months’ imprisonment;
110On Charge 6, sexual penetration of a child under 12 (inserting your finger into Eve’s vagina) you are convicted and sentenced to eight years’ imprisonment;
111On Charge 7, attempted sexual assault of a child under 16 (attempting to lick Summer’s vagina) you are convicted and sentenced to 12 months’ imprisonment;
112On Charge 8, sexual assault of a child under 16 (rubbing Summer’s vagina under her underwear) you are convicted and sentenced to three years’ imprisonment;
113On Charge 9, sexual assault of a child under 16 (rubbing Summer’s vagina under her underwear) you are convicted and sentenced to three years’ imprisonment;
114On Charge 10, sexual assault of a child under 16 (rubbing Arabella’s vagina over her pyjamas) you are convicted and sentenced to two years’ imprisonment;
115On Charge 11, sexual assault of a child under 16 (kissing Arabella’s groin area) you are convicted and sentenced to two years, six months’ imprisonment;
116
On Charge 12, sexual assault of a child under 16 as a course of conduct (touching Matilda’s vagina over her clothing) you are convicted and sentenced to
two years, eight months’ imprisonment;
117On Charge 13, sexual penetration of a child under 12, being a course of conduct (involving digital penetration of Matilda’s vagina) you are convicted and sentenced to nine years’ imprisonment. This is the base sentence;
118On Charge 14, sexual assault of a child under 16 (licking the outside of Matilda’s vagina) you are convicted and sentenced to three years’ imprisonment;
119On Charge 15, sexual assault of a child under 16 (forcing Matilda to touch penis) you are convicted and sentenced to three years’ imprisonment;
120
On Charge 16, sexual penetration of a child under 12 as a course of conduct (oral penetration of Matilda’s vagina) you are convicted and sentenced to nine years’
imprisonment;
121
On Charge 18, sexual assault of a child under 16 (licking Regan’s vagina over her underwear) you are convicted and sentenced to two years, six months’
imprisonment.
122
As stated, in considering the sentencing principle of totality, I have also had regard to the legislative intent expressed in s6E of the Act. I have also sought to ensure that you are not doubly punished and that offending that arose from a
single incident is recognised by an appropriate level of concurrency. For that reason, I have reduced the level of cumulation on Charges 10 and 11 which arose out of the same incident in respect of Arabella.
123
I make the following orders for cumulation on the base sentence, which is
Charge 13, and upon one another: Charge 2, six months; Charge 3, six months;
Charge 4, six months; Charge 5, four months; Charge 6, 18 months; Charge 8,
six months; Charge 9, six months; Charge 10, two months; Charge 11,
three months; Charge 12, four months; Charge 14, three months; Charge 15,
six months; Charge 16, 20 months; Charge 18, two months.
Offence
Maximum Penalty
Sentence
Cumulation
1
Sexual Assault of a Child Under 16 (lick Eve’s tongue)
10 years
18 months
Nil
2
Sexual Assault of a Child Under 16 (incident in bathroom licking Eve’s vagina)
10 years
3 years
6 months
3
Sexual Assault of a Child Under 16 (placed Eve’s hand on exposed penis)
10 years
3 years
6 months
4
Sexual Assault of a Child Under 16 (licked Eve’s vagina)
10 years
3 years
6 months
5
Sexual Assault of a Child Under 16 – course of conduct (touching Eve on her vagina over her clothes)
10 years
2 years,
10 months4 months
6
Sexual Penetration of a Child Under 12 (inserted finger in Eve’s vagina)
25 years
8 years
18 months
7
Attempted Sexual Assault of a Child Under 16 (tried to lick Summer’s vagina)
5 years
12 months
Nil
8
Sexual Assault of a Child Under 16 (rubbed Summer’s vagina under her underwear in your bed)
10 years
3 years
6 months
9
Sexual Assault of a Child Under 16 (rubbed Summer’s vagina under her underwear in the tent)
10 years
3 years
6 months
10
Sexual Assault of a Child Under 16 (rubbing Arabella’s vagina over her pyjamas on your bed)
10 years
2 years
2 months
11
Sexual Assault of a Child Under 16 (kissed Arabella’s groin area)
10 years
2 years,
6 months3 months
12
Sexual Assault of a Child Under 16 – course of conduct (touched Matilda’s vagina over her clothing)
10 years
2 years,
8 months4 months
13
Sexual Penetration of a Child Under 12 – course of conduct (digital penetration of Matilda’s vagina)
25 years
9 years
Base
14
Sexual Assault of a Child Under 16 (licked the outside of Matilda’s vagina)
10 years
3 years
3 months
15
Sexual Assault of a Child Under 16 (forced Matilda to touch your penis)
10 years
3 years
6 months
16
Sexual Penetration of a Child Under 12 -course of conduct (oral penetration of Matilda’s vagina)
25 years
9 years
20 months
18
Sexual Assault of a Child Under 16 (licked Regan’s vagina over her underwear)
10 years
2 years,
6 months2 months
Total Effective Sentence
16 years, 8 months’ imprisonment
Non-Parole Period
10 years imprisonment
Pre-Sentence Detention
768 days
Other Orders
Sex Offender Registration, for life
124This gives a total effective sentence of 16 years, eight months’ imprisonment.
125
The non-parole period is the minimum period you will be required to serve.
Section 11A of the Sentencing Act 1991 requires me to fix a non-parole period of at least 60 per cent of the term of imprisonment imposed, unless it is not in the interests of justice to do so. In this case, I see no reason in the interests of justice to depart from the requirement in s11A of the Act. I set a non-parole period of
10 years as the minimum period to be served before you become eligible for parole.
126Pursuant to s6F of the Sentencing Act 1991 I record that on Charges 3 to 16, and on Charge 18, you are sentenced as a serious sexual offender.
127
Pursuant to s18 of the Sentencing Act 1991, I order that 768 days of
pre-sentence detention be reckoned as already served.
128Mr Roe, your offending attracts the provisions of the Sex Offenders Registration Act 2004 and you are required to comply with the reporting obligations under that Act for life. You will be required within seven days of your release from custody to report your personal details and otherwise comply with the requirements of that Act for the rest of your life. You will shortly receive a document to sign with details your obligations under that Act.
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