Director of Public Prosecutions v Santos (a pseudonym)
[2023] VCC 781
•27 April 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-02041
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TREVOR SANTOS (a pseudonym) |
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JUDGE: | HER HONOUR JUDGE ELLIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 March and 4 April 2023 | |
DATE OF SENTENCE: | 27 April 2023 | |
CASE MAY BE CITED AS: | DPP v Santos (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 781 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: one charge of sexual penetration of a child under 16- one charge of incest- one charge of sexual assault of child under 16- one charge of sexual penetration of child or lineal descendant- sentence after trial- no relevant criminal history- two complainants-significant breach of trust;
Legislation Cited: Crimes Act 1958, Crimes (Amendment) Act 2000, Crimes (Sexual Offences) Act 1991, Crimes Amendment (Sexual Offences) Act 2016, Sentencing Act 1991, Sex Offenders Registration Act 2004;
Cases Cited:The Queen v KHB [2004] VSCA 219, DPP v Dalgleish (a pseudonym) [No 2] VSCA 360, Markovic v The Queen (2010) 30 VR 589, R v Ware [1977] 1 VR 647, DPP v G [2002] VSCA 6, R v Sposito 1993 (Unreported), DPP v MJ[2000] VSCA 66 ; DPP v Toomey[2006] VSCA 90 ; OAA v The Queen[2010] VSCA 155; Brown v The Queen (2019) 59 VR 462, R v Kilic (2016) 259 CLR 256, DPP (Vic) v Dalgliesh (a Pseudonym) (2017) 262 CLR 428, Carter v The Queen[2017] VSCA 360, Grantley v The Queen (2018) 272 A Crim R 340, Crawford v The Queen [2018] VSCA 113, Stalio v The Queen[2012] VSCA 120, Fichtner v the Queen [2019] VSCA 297;
Sentence: Total effective sentence of 12 years and 3 months imprisonment. Non-parole period of 8 years and 9 months.
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APPEARANCES: | Counsel | Solicitors | APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms. D Guesdon | Office of Public Prosecutions | For the DPP | ||
| For the Accused | Mr. M Kozlowski | Emma Turnbull Lawyers | For the Accused |
HER HONOUR:
1Trevor Santos,[1] you have been found guilty at trial of four charges namely:
· Sexual penetration of a child under 16 contrary to section 45 (1) of the Crimes Act 1958[2] (Charge 2) which attracts a maximum penalty of 10 years imprisonment;
· Incest contrary to section 44(1) of the Crimes Act 1958[3] (Charge 3) which carries a maximum penalty of 25 years imprisonment;
· Sexual assault of a child under 16 contrary to section 49D(1) of the Crimes Act 1958[4] (Charge 5) which attracts a maximum penalty of 10 years imprisonment; and
· Sexual penetration of child or lineal descendant contrary to section 50C(1) of the Crimes Act 1958[5] (Charge 7) which carries a maximum penalty of 25 years imprisonment.
[1] A pseudonym.
[2] As amended by the Crimes (Amendment) Act 2000.
[3] As amended by the Crimes (Sexual Offences) Act 1991.
[4] As amended by the Crimes Amendment (Sexual Offences) Act 2016.
[5] As amended by the Crimes Amendment (Sexual Offences) Act 2016.
2You were found not guilty on Charge 1, which was a charge of indecent act with child under 16, and a verdict of not guilty was entered by direction in relation to charge 6 (sexual penetration of a child or lineal descendant), as the evidence was insufficient to support that penetration occurred. I note that Charge 4 (sexual penetration of a child or lineal descendant) was an alternative to Charge 3, as these two offences straddled a change in legislation.
3Charge 2 concerned complainant Audrey Lloyd,[6] formally known as Audrey Stone.[7] Ms Lloyd is the younger sister of your wife, Diana Santos.[8] At the time of the offending, Lloyd was aged 15 years and you were aged 32 years. The offending occurred in early 2010, a few weeks before her 16th birthday.
[6] A pseudonym.
[7] A pseudonym.
[8] A pseudonym.
4The remaining charges related to offending committed by you against your biological daughter, Julia Santos.[9] Julia is the eldest child to you and Diana Santos. The prosecution case at trial was that you began offending against Julia when she was 11 years old, and that this continued until she was 15 years, when she disclosed the offending to a close friend in early 2021. At the time of the offending on Charge 3, Julia was aged 12 years old. Your last offence against Julia was when she was aged 15 years.
[9] A pseudonym.
Circumstances of Offending
5It is necessary to set out a little of the background to the offending, as led by the prosecution at trial, in order to place your offending, particularly against Ms Lloyd, in context. You were born in August 1977. In 2003, you met Ms Lloyd’s family, the Stone family, through your sister Tami,[10] who was friends with the eldest of the five Stone daughters, Nicole Stone[11] (who was born in December 1982). Her sister Ruby[12] was born in January 1987, Diana born in January 1988, Christina[13] born in June 1989 and the youngest, Audrey born in March 1994.
[10] A pseudonym.
[11] A pseudonym.
[12] A pseudonym.
[13] A pseudonym.
6You commenced a relationship with Nicole when she was aged 20 to 21 years old in approximately November 2003. You were 26 years old. At this time, Diana was aged 15 years. Diana, Ruby and Audrey spent time with you and Nicole. A few months after you commenced a relationship with Nicole, that relationship began to break down. You and Diana immediately commenced a relationship, which caused an estrangement between Diana and her family which lasted a number of years. Some of Diana’s siblings reconnected with her a few years later, including Audrey Lloyd.
7You and Diana went on to have six children together, with your daughter Julia being the eldest, born in September 2005.
Complainant: Audrey Lloyd
8When Audrey Lloyd was 14 years old, she was living with her mother in Altona. Ms Lloyd had experienced a difficult couple of years at home. Her mother was an alcoholic and Ms Lloyd was finding school difficult. She reconnected with her sister Diana shortly before her 15th birthday in March 2009 and began spending time at the home you and Diana shared. Further family conflict arose following the death of Diana and Audrey’s grandfather in November 2009.
9On 1 February 2010, you and Diana were married. Audrey Lloyd and her sister, Ruby, attended from the Stone family. After the wedding, Ms Lloyd had an argument with her mother about this. The following day she harmed herself and was admitted to Sunshine Hospital. She was then referred to Orygen Youth Health in Parkville for ongoing support. Ms Lloyd gave evidence that you and Diana visited her in hospital and that after her discharge from hospital, she began living with you and Diana at your home for a number of months. She recalls that she had her 16th birthday when she was staying with you and Diana.
10In March 2010, not long before her 16th birthday, you picked Ms Lloyd up from an appointment at Orygen Health in your red Toyota Prado. Orygen records show that Ms Lloyd attended for a review on 9 March 2010. There was an previous session attended in February or earlier in March. On the drive home, you told Ms Lloyd that you liked her and wanted to have sex with her. In the lead up to this offending, she felt like you were always looking at her and making eye contact. She told you that she didn’t want to. You asked her if she was a virgin. Not wanting you to know whether she was, she said she was not. Instead of driving Ms Lloyd home you drove her to your mother’s house. You opened the door to the house with a key, took Ms Lloyd inside and held her up against the hallway wall kissing her to the face and neck. She tried to avoid your kisses.
11You then walked Ms Lloyd to the second bedroom of the unit and told her to bend over and pull down her pants. Frightened, Ms Lloyd did as she was told and froze. You then penetrated her vagina from behind. It stung as you penetrated her .You continued to push your penis in and out telling her “Oh, you’re right, you’re not a virgin are you.” You were wearing a condom. You ejaculated, and then Ms Lloyd pulled up her pants and returned to your vehicle as she was told (Charge 2: Sexual penetration of a child under 16). She felt nervous and scared. You then drove her back home. At some point after this, Ms Lloyd moved back to live with her mother.
12Ms Lloyd did not disclose the offending by you until Christmas 2017 when she told her partner. She made a statement to police in March 2018. On 27 June 2018, you were arrested at your home and then participated in a taped record of interview, in which you denied the allegations of sexual offending. You told police that you had never had sex with Ms Lloyd or had done anything sexual to her.
Complainant: Julia Santos
13In 2015, your daughter Julia turned 11 years old. She lived with you, your wife and her siblings in a white house in country Victoria. Julia shared a room with her sisters Adrienne[14] and Alexis.[15] Julia gave evidence that there was an occasion when she was in your bedroom during the day, aged 11, and she believes no one else was home. You began hugging Julia and pressing your body against hers, kissing her and touching her in areas that she was not comfortable with.
[14] A pseudonym.
[15] A pseudonym.
14When Julia was 12 she matured, reaching puberty. Around this time you progressed from kissing to touching her. Your family moved to a different house in country Victoria in which Julia and Adrienne had their own rooms. It was whilst you and your family were living in this house, that you continued to abuse Julia on multiple occasions. A number of specific occasions were the subject of charges in this trial.
15When Julia was in year 7, aged 12 to 13, you took her into your bedroom. The TV was on. You pulled her against you like for a hug and then grabbed her hand and put it on your penis making her masturbate you. She described that you “used her hand like a puppet” (Charge 5: Sexual Assault of a Child under 16).
16On another occasion when Julia was aged approximately 12, you drove her to a medical appointment in Ballarat. On the way home, you stopped the car on the side of the road. Julia was sitting in the front passenger seat. You began stroking her hair before leaning over and penetrating her vagina with your finger under her baggy shorts. You did this for a short time, before removing your finger and then continued to drive home from the appointment. (Charge 3: Incest)
17On another occasion when Julia was aged approximately 13 and was in year 7, she was in her bedroom. You came into her bedroom and closed the door behind you. You pulled Julia’s shorts and underwear down and kissed the middle of her vagina. This is evidence that was ultimately relied on for context. It does not constitute a charge, and you are not to be sentenced to this.
18The last occasion on which something sexual happened was in November 2020, when Julia was aged 15 years. She was in her bedroom on her bed at about 9:50pm. You came into the room and went to hug her. You touched her breast areas, caressing this area. Julia pushed you away and screamed. You remained close to her and then penetrated her vagina with your finger. (Charge 7: Sexual Penetration of Lineal Descendant). You did this multiple times as she tried to push you away.
19Although not the subject of specific charges, Julia stated that something sexual happened on many occasions over the years. It progressed from kissing to you making her touch your penis or by you touching her. Julia was too afraid to say no but as she got older she would tell you to stop but you would still touch her sexually. She recalls that there were a number of occasions in which you penetrated her vagina with your finger. You are not to be sentenced in relation to these other incidents. They were led by the prosecution as context, and to show that the offending did not occur out of the blue; that the offences were not isolated.
20At the start of 2021 during the school holidays, Julia disclosed to a school friend via a message service Snapchat that you had been sexually abusing her, touching her inappropriately and making her feel unsafe. Julia’s friend contacted a hotline and engaged in a web chat with them about what Julia had told her. Julia gave further detail to her friend on 2 July 2021 – the same day that she spoke with police and participated in a video audio recorded evidentiary statement whilst at her home in country Victoria.
21You were arrested on 2 July 2021 and you were interviewed by police at the local police station. In that interview, you denied doing anything sexual with your daughter. You told police that you felt sad and disappointed in the allegations as you had tried to do everything to make your children happy. You told police that you at times you had been harsh on Julia because she had been rebellious. You told police it was a misunderstanding and referred to Julia having a boyfriend. You said that Julia’s best friend was a troublemaker. In relation to specific allegations, you told police that you had a rule at home that bedroom doors were to be kept open, but Julia had pushed for closed doors and had sought to be left alone.
Victim Impact
22Ms Lloyd provided a compelling Victim Impact Statement, as tendered on the plea (Exhibit A). Ms Lloyd trusted you and considered you to be family. Ms Lloyd described that her innocence was stolen from her and that she has been robbed of her confidence and self-esteem as a result of the offending. She felt violated. She was upset, angry and scared. She has recurring nightmares about what you did to her. Ms Lloyd expressed that her dignity and self-respect have been compromised. She described the long term effect that your offending has had upon her, stating that she struggles with day-to-day living and “that the feeling of violation and feeling dirty just doesn’t go away”. You took away her privacy, dignity and her virginity.
23Ms Lloyd described how she felt you used her vulnerability against her. She was fearful to tell family members of the offending and she felt would be ruining your life by speaking up. Ms Lloyd feared that people would blame her for your actions.
24Your daughter, Julia, did not provide a Victim Impact Statement, however, there can be little doubt as to the effect your offending has had upon her. There is a presumption of harm in matters concerning the sexual offending against children, especially in cases of incest.[16] As the Court of Appeal noted in The Queen v KHB, young victims of incest carry that scar for the rest of their lives.[17]
[16] DPP V Dalgliesh (a pseudonym) [2017] VSCA 360 at [68].
[17] [2004] VSCA 219 [105]; DPP v Dalgleish [No 2] VSCA 360 [70].
25It is important to note that none of your victims were to blame, in any way for your offending, which was a gross violation of the trust instilled in you as a father, and in the case of Ms Lloyd, as family member who had been called upon to assist during a time of particular vulnerability.
26I take into account the effect your offending has had on your victims. It is an important consideration in the formulation of the sentence that I must impose.
Procedural History
27You were charged in relation to the offending concerning Ms Lloyd on 27 June 2018. The charges were committed to this court on 10 October 2019, following a contested committal hearing in the Magistrates Court. You were charged in relation to the offending concerning Julia on 2 July 2021. The charges relating to Julia proceeded by way of direct indictment to this court.
28You were remanded in custody following the jury’s verdict on 21 June 2022. You have accrued 310 days of pre-sentence detention in relation to this offending.
Personal Circumstances
29You are now aged 45. You were born in Central America to your parents Josefina[18] and Roberto.[19] You are the eldest child, having two sisters and one brother. Your family left Central America when you were aged seven, due to the civil unrest in the country at that time. Your family first moved to Costa Rica, before migrating to Australia.
[18] A pseudonym.
[19] A pseudonym.
30Upon arrival in Australia, your family first lived in a hostel in Maribyrnong for approximately a year. Your family later moved to flats in Flemington and eventually settled in the Sunshine area. Your father worked as a panel beater and undertook further training and tertiary study during your childhood. Your upbringing was somewhat unstable due to your family moving frequently. This impacted your primary school education and your ability to form friendships with other children.
31You attended four primary schools. You experienced bullying at school, due to you not having a full understanding of English. You were also subjected to racist comments from your peers. You also had difficulty learning and purportedly had an issue with your eye sight, which made reading hard.
32Throughout your schooling, you gravitated towards negative peer associations. You experienced behavioural issues and were frequently getting into trouble. You attended Sunshine West High School, Sunshine Technical School and Ardeer High School. During secondary school, you were suspended on numerous occasions due to your behaviour. You subsequently left school at the end of Year 10.
33At the age of 15, your parents separated. You lived with your mother and moved with her to Queensland. Your parents’ separation came as a surprise to you and you rebelled as a result. You began to use drugs recreationally. You remained with your mother in Queensland for a period of two years. Your mother returned to Melbourne when you were aged 17. You then spent a year splitting time between Melbourne and Queensland, where you had formed friendships. It is throughout this period that your drug use escalated, which coincided with the commencement in criminal offending.
34At the age of 18, you met your first partner. You resided together in Queensland and later in Melbourne. You and your first partner share two children, a son, Trevor Junior,[20] now aged 24 and a daughter, Alexis, aged 22. You purportedly ceased drug use when your son was born.
[20] A pseudonym.
35Your daughter Alexis has an intellectual disability and has complete deafness in one ear. Alexis has also previously had bacterial meningitis on multiple occasions, which involved her being put into an induced coma in the Intensive Care Unit. The periods where your daughter was in ICU would have undoubtedly been a stressful time for you and your family. I note that Alexis successfully completed Year 12 and is currently employed.
36You and your first partner eventually separated. You began dating Nicole Stone approximately six months after your separation. Your relationship lasted a few months, before you commenced a relationship with your current wife, Diana. You and Diana share six children, three daughters and three sons (Julia aged 17, Adrienne aged 15, David[21] aged 14, Wesley[22] aged 12, Max[23] aged 9 and Katie[24] aged 5).
[21] A pseudonym.
[22] A pseudonym.
[23] A pseudonym.
[24] A pseudonym.
37You and your family moved frequently when your eldest children were young, living in rental properties in different areas of Victoria. Your family later settled in country Victoria. You and Diana have also had your eldest children, Trevor Junior and Alexis, live with you for extended periods of time.
38You have been the sole source of income for your family and have worked within the transport industry for the last 25 years. Most recently, you were working as an interstate truck driver. You would spend long hours driving and extended periods of time away from your family. Prior to commencing employment within the transport industry, you worked a number of short term jobs, including working in hospitality, in spray painting and panel beating.
39A large number of character references were put forward in support of your plea from your family members, and others who have come to know you. They remain supportive of you. I note that the character references did not acknowledge the circumstances or effect of your current offending. However, many of them expressed their respect and admiration of you particularly as a father and as a husband. You are described as a respectful person and a hardworking, reliable man to whom your friends have turned when in need of guidance. You are described as being willing to help others.
40You have been in custody during the COVID-19 pandemic. You have been in quarantine due to prison placements and transfers and have experienced lengthy intermittent periods of lockdown and isolation. While there have been limited opportunities to participate in programs whilst awaiting sentence, you have been able to undertake a number of courses as well as engage in study in literacy and numeracy.
41You suffered a fall in custody in July 2022, resulting in a sprained ankle and back pain, which is ongoing and for which you receive medication. You also suffer from sleep apnoea and require a machine to assist you with your sleep. There have been difficulties obtaining replacement filters for the machine in custody. I note that these matters were submitted to the court by way of email, following your plea.
42In November 2022, while in custody, you had an operation for the removal of an abdominal growth. You experienced significant pain and discomfort as a result of the growth, as well as bleeding that occurred after the surgery. Your health has purportedly improved since the surgery. I take the difficulties that you have experienced whilst in custody on remand into account both with respect to your personal experience and having regard to the impact the pandemic has had on that time in custody.
43Since your remand, your family has struggled financially. Your wife has experienced difficulty solely supporting your large family and the responsibility of paying rent and bills has been challenging. To that end, your counsel submits that your inability to support your family during your incarceration will cause you considerable anguish, which will make prison more burdensome for you. I accept this and take this into account in accordance with the principles set out in Markovic v The Queen.[25]
[25] (2010) 30 VR 589.
44Moreover, since your incarceration, you have been unable to speak with your children over the phone or to see them whilst in custody. This has understandably been distressing for you and your wife reports, this has impacted on your children’s well-being, which is no doubt difficult for you.
Prior Criminal History
45You have admitted a prior criminal history, which dates back to 1996. You have prior convictions in Queensland and Victoria relating to dishonesty offences, weapons offences, driving and drug related offences. Your last conviction was in 2004. I note that none of your prior charges were of a sexual nature or involved children. I accept that your criminal history is dated and is of limited relevance to the current sentencing exercise.
Totality
46You have been found guilty of four charges. The offences involve distinct and serious conduct, as such each offence warrants individual punishment. The prosecution submit that there should be appropriate cumulation to reflect that there are two victims and multiple charges. Your counsel also concedes that that court must impose a level of cumulation.
47The totality principle requires that your overall sentence remains just and proportionate to the totality of your offending. In this case I must try to avoid a crushing sentence, particularly having regard to your age now. In order to comply with the totality principle in this case I have both moderated to a degree the length of the individual sentences and the periods of cumulation. I have found this necessary to avoid a crushing sentence.
48Whilst I am mindful of the principles of totality, there is nevertheless a need for the sentence to reflect the individual charges and the conduct they comprise.
Delay
49I accept that there has been considerable delay in the finalisation of these proceedings. Through no fault of your own this matter has taken time to come to a conclusion. There was delay in reporting in relation to the charge concerning Ms Lloyd, who disclosed the offending to her partner a number of years after the event.
50There was delay in the commencement of the trial relating to Ms Lloyd. Prior to the trial commencement, you were charged with further offences, which were those relating to Julia. The prosecution joined the charges and sought to run a trial comprising of offending against both complainants.
51There have been delays associated with the COVID-19 pandemic. The court has faced a substantial backlog of trials resulting from the suspension of jury trials. Previous listings of your trial were thwarted due to the illness of jurors and other circumstances outside your control. The trial had to restart a of number times. In respect to the charges relating to Ms Lloyd, there was a delay of over 12 years between the date of offending and the jury returning a verdict. I take this into account.
52There was less delay associated in the reporting of the charges concerning Julia, who disclosed the offending to her friend within six months of the last occasion. I note that the trial commenced within a year of the first police involvement, in respect of the charges concerning Julia.
53Since the jury’s finding of guilt, you have had to await the outcome of other proceedings before these could be finalised. Some of this delay is attributed to you seeking to retain the same counsel for each of these proceedings for consistency. I accept that during this period of time you have had the strain of legal proceedings hanging over your head which has caused you, and by extension your family, ongoing anxiety. Similarly, I note that the delay in proceedings would have impacted upon Ms Lloyd and Julia but again none of the delay is attributable to you. There were then further delays following the conclusion of those other proceedings in November last year, as you then were awaiting an appointment with a psychologist. It still remains unclear to me however, why an appointment was not at least arranged for you to see a psychologist at an earlier stage regardless of the outcome of the other proceedings. This was discussed at a Mention in September 2022[26] but for whatever reason, an appointment was not arranged at that time. You ultimately saw Ms Carla Lechner on 7 February 2023.
[26] When discussing the listing of an outstanding trial.
Psychological Report
54You were assessed by clinical psychologist, Ms Lechner, and a report was prepared and tendered on your behalf (Exhibit 2). You continue to deny the offending, and, consequently, Ms Lechner was unable to address the issue of remorse within the report, instead focusing on your risk of reoffending. Ms Lechner commented that you maintain that Diana’s sisters have tried to break up your marriage, borne out of jealousy and that your daughter made up the allegations as she does not like living at home under strict rules.
55Ms Lechner opined that you do not present with symptoms of an underlying psychological or psychiatric disorder. She noted that you are struggling to adjust to the prison environment and you report a high level of anxiety. I note that your counsel places no reliance on Verdins principles.
56You were assessed utilising the STATIC-99 and Risk of Sexual Violence Protocol (RSVP). Ms Lechner opines that considering both assessment tools, that you are a low/moderate risk of sexual re-offending when compared to other sex offenders, with the availability of victims being the most salient risk of reoffending. Ms Lechner notes that your sexual offending is limited to young victims to whom you are related, and with whom you are likely to have regular contact.
57Further, Ms Lechner comments that you are a low risk to young girls in general but a moderate risk to young girls in the family. Ms Lechner does not consider you to be an offender who actively seeks out young victims.
58At the plea hearing, prosecution counsel submitted that the assessment of you being a low-moderate risk of re-offending was effectively situational and based on availability. Your counsel sought to call Ms Lechner to clarify information in relation to the report. This occurred at a Further Plea on 4 April 2023.
59At the hearing, Ms Lechner adopted the contents of her report and noted the your denial of offending did not affect her opinion that you are a low/moderate risk of re-offending. In cross examination, Ms Lechner commented that the STATIC-99 assessment tool is an actual risk factor using statistics. In comparison, the RSVP assessment tool is not statistic based and instead involves professional judgement. Ms Lechner maintained her conclusions regarding your level of risk, noting that it was not possible to assess what sexual gratification you may gain from the offending or provide target interventions, due to your denial of the charges.
60I have taken into account the evidence of Ms. Lechner and the risk assessment she has conducted, when assessing your prospects of rehabilitation. It is difficult to assess your prospects in circumstances where you have been found guilty at trial of offending against two victims, which took place a number of years apart. This being a verdict after trial, there is no evidence of remorse. You have the support of your family and a strong work history, and as long as you are not provided with the opportunity to be alone with children, I consider your prospects of rehabilitation to be reasonable, if not good.
Nature and Gravity of Offending
61The crime of incestcarries a maximum penalty of 25 years, reflecting the seriousness with which the legislature views this offending. Incest is a crime of violence and must be so regarded. The long-term harm done to the victims must be given due weight in the sentencing process. This relates to both victims in relation to all of the offending.
62In relation to the offence of incest, as has been recognised, sentences must be commensurate with the seriousness of the breach of parental responsibility involved. The offence of incest is rightly regarded as abhorrent by the community. It ‘strikes at the familial roots of civilised society’[27] and ‘has long been regarded as being [a crime] of particular repugnance.’[28] Your offending involved a fundamental breach of parental trust and responsibility.
[27] R v Ware [1977] 1 VR 647, 653 (Hedigan AJA, Winneke P and Hayne JA agreeing) (“Ware”); quoted with approval in Dalgliesh [28].
[28] DPP v Charlie Dalgliesh (a Pseudonym)[2017] VSCA 360 [66] (Ferguson CJ, Weinberg and Whelan JJA) (‘Dalgliesh No. 2’).
63In DPP v G,[29] Winneke P said this of the crime of incest at [11]:
This court has, in recent years, had cause to remark on the prevalence of the crime of incest in the community, its capacity to erode decency of family life and the trust and confidence of its young victims. It is a crime which obliges the court to punish it with principles of general deterrence, denunciation and protection of young persons at the forefront of sentencing purposes. ... The insidious effects of the crime of incest upon its victims should be recognised by those who are privileged to exercise parental care and the community is entitled to expect that those who exercise such care, will not abuse the trust and confidence reposed in them by those in their charge. Parents and those in loco parentis who fail to exercise the restraint which the community expects of them, and who give in to their own sexual gratification, must expect to be severely and appropriately punished.
[29] [2002] VSCA 6.
64In R v Sposito[30] Marks J, with whom Hampel and McDonald JJ agreed, said:
A society which fails to protect its children from sexual abuse by adults, particularly 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 the 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 and the community, and the irreparable fundamental damage to the victim... Another feature is that the resolve of the victim to resist the demands of the offender is weakened by the natural affection which the child has for his or her parent, and by reason of other aspects of natural dependency.
...
It is difficult to imagine conduct which is more evil than that of a father, or a person in the position of a father, who preys for his own sexual satisfaction on his own young child ...[31]
[30] Unreported, Supreme Court of Victoria, Appeal Division, Court of Criminal Appeal, 8 June 1993.
[31] Ibid 4–6. See also Ware 653; DPP v MJ[2000] VSCA 66 [17] (Phillips CJ, Brooking JA and Hedigan AJA agreeing); DPP v Toomey[2006] VSCA 90 [18]–[19] (Vincent JA) (‘Toomey’); OAA v The Queen[2010] VSCA 155 [42] (Maxwell P and Weinberg JA); Dalgliesh [80]; Dalgliesh No. 2 [67].
65Similarly, sexual penetration of a child under 16 years is a serious offence. Again, the harm done to a child cannot be underestimated.
66Your counsel conceded that the offending here is serious and that a term of imprisonment with a non-parole is required for this offending. Mr Kozlowski submits that the offending with respect to each victim did not involve violence or threats of violence nor was there any allegation that the offending resulted in physical injuries to your victims. I accept that. Had those factors been present, the offending would have been objectively more serious. The absence of those features is nevertheless, not determinative of the assessment of the gravity of your offending. This assessment is undertaken on the basis of your conduct in each of the instances the subject of the charges.
67However, there are two victims of your offending, albeit that the nature of the offence itself for each is different, which is reflected in the maximum penalty applicable. Notwithstanding this, your offending in each instance was opportunistic and exploitative. Your moral culpability in each instance was high.
68The first victim, Ms Lloyd was a particularly vulnerable young person in what has been described as a dysfunctional family. Following a falling out with her mother, Ms Lloyd had been hospitalised due to self-harming and for a period resided with you and your wife as she was unable to return home. By reason of this she was vulnerable, even more so because the offending occurred when you were driving her home from a counselling session. Accordingly, you took advantage of a very vulnerable young woman. Whilst there is an aspect of your offending that is opportunistic, it is noted that you took Ms Lloyd to the home of your mother, whereby you immediately took her to a spare room and penetrated her vagina with your penis.
69The offending against Julia was not confined to a single isolated event; it was part of a protracted ongoing conduct over a period of a number of years. It commenced when she was aged 11 or 12 and was therefore vulnerable going into her pubescent years. As her father, you violated the trust placed in you by virtue of your relationship. Indeed what appears to be one of the first pieces offending occurred as you were taking her home from a doctor’s appointment. Julia was entitled to the care and protection of a father, particularly when she was in her own home. Your conduct against your daughter does indeed constitute a most abhorrent abuse of trust. You took advantage of the position of trust that you had with your daughter. In addition to her young age and vulnerability, two of the offences involved penetration of your biological daughter for your sexual gratification.
70You have maintained your innocence for these offences but were found guilty by jury. You are not to be punished for exercising your right to trial, however the consequences of this are that you are not entitled to any discount that you would have been entitled to had you pleaded guilty. Secondly, maintaining your innocence, again as is your right, means that there is no evidence of any remorse or contrition. Indeed, you continue to blame both Julia and Ms Lloyd, which reflects an absolute lack of insight on your part.
Sentencing Act Provisions
71Charge 7 is a category 1 offence. Imprisonment is mandatory and cannot be combined with a community correction order.
72Charge 7 (Sexual Penetration of a Child or Lineal Descendant) is a standard sentence offence. The standard sentence on this charge is 10 years imprisonment.
73As section 5A of the Sentencing Act 1991 makes clear, the period specified as the standard sentence is the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.
74Section 5B(2)(a) obliges the court to take the standard sentence into account as one of the factors relevant to sentence. The standard sentence is a matter to which the sentencing court must have regard when imposing sentence.
75But, as the Court of Appeal clarified in Brown v The Queen[32], section 5B(3) expresses the legislature’s clear intention that the obligation to take the standard sentence into account should not otherwise affect the sentencing discretion. It 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 and does not require or permit 'two stage sentencing'. Further, it does not otherwise affect the matters which the court may, or must, take into account in sentencing.
[32] (2019) 59 VR 462.
76Further, when fixing a non-parole period in respect of a standard sentence offence, the court must not fix a non-parole period that is less than 60 per cent of the head sentence unless satisfied that it is in the interests of justice not to do so.
77Finally, I note that a court must not have regard to sentences imposed in other cases unless they involve standard sentence offences.
78I have had regard to the standard sentence for this offence as one of the matters to be taken into account in arriving at the appropriate sentence by the process of instinctive synthesis.
79Additionally, I have had regard to current sentences practices for this offence under the standard sentencing scheme, though this is not a controlling factor.
Sentencing Practices
80More broadly, in relation to the other three charges, I have also had regard to current sentencing practices for the offence of incest as informed by the decisions of the High Court in R v Kilic[33] and DPP (Vic) v Dalgliesh (a Pseudonym)[34] and the Victorian Court of Appeal’s decisions in Dalgliesh (No 2),[35] Carter v The Queen,[36] Grantley v The Queen[37] and Crawford v The Queen.[38]
[33] [2016] HCA 48; (2016) 259 CLR 256, 266–8 [21]–[25].
[34] [2017] HCA 41; (2017) 262 CLR 428 .
[35] [2017] VSCA 360; (2017) 271 A Crim R 1, 15–17 [66]–[75].
[36] (2018) 272 A Crim R 170, 184–9 [65]–[81].
[37] (2018) 272 A Crim R 340, 345–7 [19]–[26], 347–9 [28]-[34].
[38] [2018] VSCA 113.
81However current sentencing practises for the offence of incest, sexual penetration and sexual assault of a child under 16 is but one of the factors to be considered.
82In relation to Charge 2, the offending took place in 2010. In accordance with the principles in Stalio v The Queen[39] I have had regard to sentencing practices at the time of offending for the purpose of ascertaining just punishment in accordance with the principle of equal justice.
[39] [2012] VSCA 120; (2012) 46 VR 426.
Serious Sexual Offender Provisions
83All charges are relevant serious sexual offences pursuant to schedule 1 of the Sentencing Act 1991.
84You fall to be sentenced as a serious sexual offender once convicted and sentenced to imprisonment on two of the four charges.
85The effect of sentencing as a serious sexual offender is that the court must regard protection of the community as the principal purpose for which the sentence is imposed. In order to achieve that purpose. the court may impose a disproportionate sentence. The prosecution does not seek a disproportionate sentence here, and I do not intend to do that. The court must, unless otherwise directed, order that the sentences be served cumulatively. Furthermore, I must enter into the record that you were sentenced as a serious sexual offender.
Relevant Sentencing Principles
86The basic purposes for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. I am required, pursuant to the Sentencing Act 1991, to take into account various factors when formulating an appropriate sentence in your case. These include the seriousness of the offending, your culpability, the effect of your offending on the victims and your personal circumstances.
87The sentence I pass must balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders can be rehabilitated. I also have regard to principles of parsimony.
88As previously noted, as result of the applicable serious sexual offender provisions, community protection is the principal purpose for which the sentence must be imposed. Further, the sentencing principles of general deterrence, denunciation and just punishment assume considerable importance in this case.[40] I do have regard to each of these considerations and for avoidance of any doubt, I do indeed denounce your conduct.
[40] Fichtner v the Queen [2019] VSCA 297 at [67-69] .
89The prosecution submit that specific deterrence should also attract some weight in the sentencing exercise. Whilst you do not have any prior criminal history relating to sexual offences or offences concerning children, the offending here occurred over an extended period of time and involved two victims. Your counsel submits that given the assessment by Ms Lechner that you are a low/moderate risk of re-offending, that specific deterrence should play a lesser role in the sentencing process. In my view, there is some need to have regard to specific deterrence for the reasons identified by the prosecution, namely that the offending relating to Julia occurred over a period of time, and was therefore not isolated, aberrant behaviour; and the offending was committed against two victims.
Sentence
90On Charge 2, sexual penetration of a child under 16, you are convicted and sentenced to 5 years imprisonment.
91On Charge 3, a charge of incest, you are convicted and sentenced to 7 years imprisonment. This charge will be the base sentence.
92On Charge 5, sexual assault of a child under 16, you are convicted and sentenced to 15 months imprisonment.
93On Charge 7, sexual penetration of a child or lineal descendant, you are convicted and sentenced to 6 and a half years’ imprisonment
94I order that the sentence imposed on Charge 3 will be the base sentence.
95I order that 2 and 3 months of the sentence imposed on Charge 2 be served cumulatively on Charge 3.
96I order that 6 months of the sentence imposed on Charge 5 will be cumulative on charge 3 and on other sentences imposed this day.
97I order that 2 ½ years of the sentence imposed on Charge 7 be cumulative on Charge 3 and on other sentences imposed this day.
98This equates to a total effective sentence of 12 years and 3 months imprisonment. I fix a non-parole period of 8 years and 9 months imprisonment.
99Having been convicted and sentenced to a term of imprisonment on Charges 2 and 3, I have sentenced you as a serious sexual offender on Charges 5 and 7 and this will be noted in the records of the court.
Pre-Sentence Detention
100Pursuant to section 18 of the Sentencing Act 1991, I declare 310 days pre-sentence detention as time already served to be deducted from the sentence that I have imposed.
Sex Offender Registration
101I declare, having been found guilty of three Class 1 offences and one Class 2 offence, you will be required to comply with the obligation imposed by the Sex Offenders Registration Act for the rest of your life. Upon your release from custody you must comply with your reporting and other obligations for life.
102I must advise you about the nature of these obligations under the Sex Offenders registration Act. This is being provided to you by way of a notification of those reporting obligations. You are going to be asked to read those obligations and your counsel will take you through them at a later stage.
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