Director of Public Prosecutions v Schulz
[2018] VCC 1058
•10 July 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-01681
CR-17-01766
CR-17-01767
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL SCHULZ |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 June 2018 | |
DATE OF SENTENCE: | 10 July 2018 | |
CASE MAY BE CITED AS: | DPP v Schulz | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1058 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords:
Legislation Cited: Sentencing Act 1991
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr N. Batten | Office of Public Prosecutions |
| For the Accused | Ms S. Keating | Aitken Partners |
To ensure there is no possibility of identification, this sentence has been anonymised by the adoption of pseudonyms in place of names of the victims and family or witnesses.
HER HONOUR:
1 Michael Schulz, on Indictment H10119910A.2 you have been found guilty by unanimous jury verdict on Charges 1, 3, 4, 5 and 10. On Charge 2, the jury returned a majority verdict of guilty. In relation to Charges 3, 4 and 5, the jury found the aggravating feature proven, that is, that Sara Mason[1] was between 12 and 16 years of age and under your care, supervision or authority.
[1] Sara Mason is a pseudonym
2 The jury found you not guilty of Charges 6, 7, 8 and 9.
3 You have, therefore, been found guilty of one charge of grooming for sexual conduct with a child under 16, three charges of sexual penetration of a child under 16 and in relation to each of those three charges, as I have said, the aggravating feature was proven, also one charge of possession of child pornography and one charge of indecent act with a child under 16.
4 The maximum penalties applicable to the charges are, grooming 10 years’ imprisonment, indecent act with a child under 16, 10 years’ imprisonment, sexual penetration of a child under 16, with the aggravating feature (care, supervision, authority) proven, 15 years’ imprisonment and possession of child pornography, 10 years’ imprisonment.
5 You have also consented to me hearing and determining Summary Charges 3 and 20 ‘supply alcohol to a child’ pursuant to s145 Criminal Procedure Act 2009. Summary Charge 3 related to Sara Mason at Noonameena and Summary Charge 20 to Tristan Chapman[2] at Noonameena. You pleaded not guilty to those two charges.
[2] Tristan Chapman is a pseudonym
6 Mr Batten relied upon the following evidence in support of these two charges. From Sara’s first VARE, questions 19-31 and 47-99 (read into the transcript at T8-9). From Sara’s cross-examination in which she denied bringing alcohol (Trial T453-454) and from Tristan’s VARE, questions 14-17, 58, 88-91 and his cross-examination (Trial T632).
7 Mr Batten referred to s242 Criminal Procedure Act 2009 and the Court having jurisdiction to hear and determine those charges without a jury.
8 Ms Keating consented to those charges being determined by me.
9 Mr Batten submitted, based on the evidence, I should be satisfied beyond reasonable doubt that you supplied alcohol to Sara and Tristan at Noonameena.
10 Ms Keating submitted that part of the prosecution case relied upon an answer in Tristan’s VARE in which he said, "Sara said she would be getting alcohol but she didn’t say it would be from Michael". Ms Keating submitted this meant Sara was going to personally bring alcohol. I, however, do not read that answer as narrowly as Ms Keating and such does not preclude her being aware the accused was going to bring alcohol.
11 Nor, in my opinion, did the answer by Tristan in his VARE (Q77), preclude supply of alcohol by the accused.
12 Upon consideration of the evidence regarding alcohol at Noonameena, I am satisfied beyond reasonable doubt you supplied alcohol to both Sara and Tristan (being under 18 years of age) at Noonameena.
13 The maximum penalty applicable to the charge of supplying liquor to a child is 120 penalty units (1 penalty unit = $155.46 at the time of this offending).
14 It is not necessary for me to recount in great detail the other evidence in this trial, as it is on transcript, having been ventilated throughout the course of your trial. I proceed to sentence you on the basis of the facts as summarised from the evidence and discussed during the course of your plea hearing. It is sufficient for present purposes to simply say the facts in this case are most serious and disturbing.
15 You were 51 years of age in the latter half of 2016, the time the sexual acts giving rise to Charges 2, 3, 4 and 5 were committed. The complainant, Sara Mason, was then 14 years of age, 37 years younger than you.
16 In 2015 and 2016, you were the scout leader of Mitchell Troup at Gisborne Scouts. Sara was a member of Mitchell Troup and met you through scouting activities. You were the leader of her scout group.
17 Sara lived with her foster parents, Barbara Mason[3] and Jeffrey Mason[4]. In relation to Charges 3, 4 and 5, on those occasions Sara had been entrusted into your care, supervision and authority (as charged).
[3] Barbara Mason is a pseudonym
[4] Jeffrey Mason is a pseudonym
18 Turning to the Charge 1, grooming. The prosecution relied, for proof of this offending, on a number of Facebook messages referred to in great detail during your trial and I will not repeat that detail here. The prosecution submitted the Facebook messages consisted of communications between Sara and you, which began with talking about scout work, becoming more personal over time, including Sara texting you when she was at parties or intoxicated.
19 Turning to Charge 2. In October 2016 Sara was working towards her Australian Scout Medallion. You met with her foster parents at their home and told Barbara Mason (Sara’s foster mother) that Sara needed to brush up on her camp craft and that you were happy to take her away overnight on her own. You said it was out of scout rules, so not to tell anyone. You said she should find someone else to go with them. Sara nominated a friend, Tristan Chapman. Jeffrey Mason confirmed the plans for the overnight trip with you. On 21 October 2016, at approximately 9.00pm, you picked Sara and Tristan up from her home and went to Noonameena Scout Camp. On that occasion, Sara gave evidence which was accepted by the jury, that you shared a bed with her, Charge 2, indecent act.
20 I turn to Charges 3 and 4. Between 21 October and 1 November 2016 the scout group went on a hike to the Great Ocean Road in the Otways area. Sara was not on the list of participants, but on the day of the trip you arrived with her having driven Sara on her own to the site.
21 On the first day of hiking, everyone hiked approximately 10-12 kilometres, except for you and Sara. You were left alone together. Sara gave evidence that at that camp site you brought alcohol, which she consumed. At that location you penetrated her vagina with your penis (Charge 3), and put your penis into her mouth (Charge 4). Sara’s parents were aware and consented to her being under your care, supervision and authority at the Great Ocean Road.
22 Charge 5 related to a trip to the Wombat State Forest. Sara’s foster mother was aware of your plan to take Sara to Wombat State Forest for scout work during the day, specifically to perform badge work building shelters. On that occasion you were alone with Sara. You gave her cider to drink. You penetrated her vagina with your penis when in the back of your ute.
23 Turning to Charge 10, possession of child pornography. On 7 January 2017 a Samsung Galaxy 6 mobile phone found in your bedroom and a Samsung S4 phone found in your car were analysed by police. On the Samsung Galaxy 6 there were 22 images of Sara exposing her breasts. There were also a number of ‘legal’ images found on the Samsung S4, obviously not the subject of course of any charge. Your defence in relation to that charge was whether you knowingly possessed those images.
24 Your defence in relation to the sexual offending was a denial of the alleged acts. In relation to the charge of grooming, you denied the sending of the messages were for that purpose, rather you said were to keep the lines of communication open with her, a ‘bit of banter’ or ‘stirring her’.
25 You gave evidence at your trial maintaining the defences to which I have referred. You also maintained you did not provide alcohol to Sara on any occasion.
26 The victims of your offending, Sara and her parents, have suffered considerably in the manner described in their victim impact statements, to which I shall shortly refer.
27 You have pleaded not guilty to the charges on the Indictment and the two summary charges for which you are to be sentenced. You are, of course, entitled to go to trial and plead not guilty to all the charges. I find however you are not remorseful for your offending.
28 You had spent 96 days as pre-sentence detention as at your plea hearing. You do not have any prior or subsequent Court appearances.
29
By findings of guilt on two or more Class 1 offences (Charges 3, 4 and 5 being Class 1 offences and Charges 1, 2 and 10 being Class 2 offences) pursuant to the Sex Offenders Registration Act 2004, you are required to report for life.
Ms Keating agreed such classification and duration applied to you.
30 Further, following sentencing to terms of imprisonment on Charges 1 and 2 you are to be sentenced as a serious sexual offender pursuant to the Sentencing Act 1991 on Charges 3, 4, 5 and 10.
31 In so sentencing you I am required to take into account s6D/s6E Sentencing Act 1991. Section 6D states, when sentencing a serious sexual offender in determining the length of the sentence I must regard the protection of the community from you as the principal purpose for which the sentence is imposed and may, in order to achieve that purpose, impose a sentence longer than that which is proportionate to the gravity of the offence considered in light of its objective circumstances.
32 The prosecution was not urging a disproportionate sentence and I am of the opinion I can sentence you without the need to impose a disproportionate sentence.
33 Also relevant when sentencing serious sexual offenders is R v RHMcL[5], and more recently DPP v Hopson[6] and Matheas v The Queen[7] which address the ‘tension’ between the principle of totality and the serious sexual offender provisions (s6D/E).
[5] (2003) CLR 452 at 76
[6] [2016] VSCA 303 [48]-[52]
[7] [2017] VSCA 330[46]-[50]
34 In Matheas¸Tate JA referred to s6E:
“There is a need to ensure that the totality principle is not applied in a manner inconsistent with the legislative purpose of s6E, that is, full effect is not to be given to the totality principle as though s6E ‘was not on the statute book’. The weight to be given to the totality principle is to be moderated to ensure consistency with legislative purpose.” [50]
35 There are a number of aggravating features of your offending. The provision of alcohol in relation to Charge 2, I note already the subject of a specific summary charge. Also alcohol the background to your offending in Charges 3, 4 and 5. I am mindful, as stated, not to ‘double punish’ you regarding Charge 2 and Summary Charge 3.
36 Mr Batten submitted the supply of alcohol by you was also relevant to the messages in Charge 1. That the messages reflected a combination of offences of liquor, supply of liquor and sexualising of the relationship. I agree.
37 A further aggravating feature was an element of pre-planning/pre-meditation referrable to Charges 2, 3, 4 and 5. Mr Batten submitted the evidence of pre-meditation was strong and referrable to the Great Ocean Road and Wombat State Forest, sexual references apparent from the Facebook messages. The messages, he submitted, revealed extensive communication arranging for you to be alone with Sara at the Great Ocean Road and Wombat State Forest for sexual purposes. There was also pre-planning regarding Noonameena arranging for Tristan to attend, not for other scouts to attend. I agree.
38 Ms Keating conceded a level of premeditation was clear from the Facebook communication in which you discussed spending time together. I agree.
39 Mr Batten submitted there was also significant disparity between Sara’s age at the time, 14, and yours 51/52. I agree.
40 A further aggravating feature involved breach of trust although I am mindful of Charges 3, 4 and 5 involved offending under your care, supervision and authority. In my opinion, breach of trust referrable to those charges is subsumed in the aggravating features of care, supervision and authority, and again I am mindful not to ‘double punish’ in that regard.
41 There was also the breach of the trust of Barbara and Jeffrey Mason. They trusted you to appropriately look after Sara, trusting you to act appropriately towards her when at Scout events.
42 A further aggravating feature, in my opinion, was that Sara was a particularly vulnerable young woman, and you knew it. You knew she had engaged in self-harming from 2015. In her VARE, she identified you as the ‘person she went to’ (Q95-96 VARE1) and in your record of interview you told police you saw yourself as a ‘father figure’ to her. You acknowledge she talked to you about things that she could not talk to her mother and father about.
43 Your offending against Sara was, in my opinion, very serious and concerning.
44 Ms Keating prepared a written outline of submissions for your plea hearing and addressed those during the course of it.
45 Referring to the gravity of your offending, Ms Keating urged regarding Charge 1 (grooming), that offending occurred between approximately 7 October and 10 November 2016. Mr Batten submitted your offending relevant to Charge 1 occurred between 7 October 2016 and 31 December 2017 to 1 January 2017 when you directed Sara to delete the messages between you when she was in hospital.
46 Ms Keating, in characterising the gravity of this offending, referred to Sara’s description of the messages as ‘a bit of fun’. Ms Keating urged the communications were incomplete and absent the messages that did not focus on sexual activity. I accept that was so. Ms Keating submitted you admitted some of the messages were inappropriate when interviewed by police and again before the jury (Ex 1 paragraph 4 (a)-(e)). Ms Keating submitted your offending in Charge 1 was towards the lower end of that offence.
47 Mr Batten submitted the messages being ‘a bit of fun’ had been rejected by the jury by their finding of guilt. The prosecution submitted whilst it could not be said who initiated the sexual content of the messages, you nevertheless introduced sexual suggestions and meaning into the messages. That your Facebook messages actively encouraged and pursued sexual suggestions. He submitted your grooming of Sara (Charge 1) enabled you to achieve the substantive offences, that you groomed her for sexual purposes and achieved just that. He conceded some messages were likely to be missing, however, the jury found this charge proven being mindful of that submission being made to the jury by Ms Keating during the course of the trial.
48 This was, he submitted, not at the lower end of gravity scale rather above ‘mid-range’. Your explanation that the messages were ‘banter’ was not consistent with the jury’s finding on Charge 1.
49 In my opinion, your offending relevant to Charge 1 is toward mid-range not ‘low end’. I accept the prosecution submission regarding this offending and why it can be so categorised. You actively participated in sexualised messaging. I also accept the prosecution submission that regarding the end date of this offending being 31 December 2016/1 January 2017 when you directed Sara to delete the messages between you. At that time the nature of the relationship and engagement between you and Sara had not altered.
50 In my opinion, Ms Keating’s submission that none of the late December 2016 messages were consistent with an intention to facilitate sexual activity is a ‘too narrow’ reading of the content of the messages.
51 Addressing Charge 2, Ms Keating submitted this offending was at the ‘lower end’ of the scale of gravity.
52 Mr Batten did not urge otherwise and I am also of the opinion that offending is towards the lower end and in so concluding note the features of it referred to by Ms Keating (Exhibit 1, paragraph 6).
53 Addressing Charges 3-5 inclusive, Ms Keating appropriately in my opinion, conceded that those involved serious offending.
54 Ms Keating urged there was a lack of violence involved. However, in DPP v Dalgleish[8] the Court referred to arguments such as that ‘no violence accompanied the offending’ and rejected the associated implication that no harm was done to the victim. Sexual penetration of a child is, by its very nature, an act of violence. Referring to Clarkson v The Queen[9] the Court observed that the significance of violence and harm which such conduct entailed could not be overstated.
[8] [2016] VSCA 148
[9] (2011] 32 VR 361
55 In my opinion, Charges 3, 4 and 5 are very serious examples of this offending.
56 In sentencing I am aware Charges 3 and 4 occurred within the same incident and some concurrency applies to those charges.
57 I am also aware, as I have said, of the need to avoid ‘double punishment’ referrable to breach of trust.
58 Ms Keating submitted regarding Charge 10 it could not be concluded you requested those photographs. The photographs, she submitted, were less sexually explicit than photographs often seen in other such offending. That is so. Ms Keating submitted they were unsolicited by you and without threats or intimidation. There were also relatively few photographs (22). She submitted this offending was at the lower end of seriousness.
59 This categorisation was conceded by Mr Batten and, in my opinion, that was an appropriate concession, however I accept his submission you had photographs of a person known to you and in respect of whom you were offending in other ways. That distinguished your offending from randomly obtaining internet material.
60 Ms Keating provided details of your background and history.
61 You are 53 years of age at sentence. You had a relatively unremarkable upbringing. You attended primary school in Geelong and when you were 10 the family moved to Adelaide. You attended school until Year 11, without difficulties with the curriculum, friends or social development.
62 You left the family home when you were 18 to work on the farm of a member of your extended family.
63 Thereafter you had a stable employment history of over twenty-five years in the security industry, most recently leaving a position at the MCG after nine-and-a-half years.
64 You met your wife in 1986, married, and have two children. You described the relationship with your wife as open, caring and loving, and that you had her continued support.
65 In custody, you kept busy working, producing number plates and engaging in regular physical exercise.
66 Prior to your offending you were involved with the Uniting Church for twenty years as a member of the council, devoting time to maintenance of the church. You also volunteered in relation to setting up ANZAC Day services at Gisborne for many years.
67 You became involved with the Scouts in 2009 and at the time of this offending had been involved with the Scouts for a period of eight years. Four years of that pre-dated any association with Sara.
68
Your commitment to that organisation involved twenty hours per week and
Ms Keating referred to witnesses called on behalf of the prosecution during the trial who spoke of your integrity as a Scout leader.
69 Ms Keating submitted that despite the lack of remorse for your offending, given you contested the charges at trial she urged you had good prospects of rehabilitation, given your prior good character, lack of criminal history, existence of strong family support from your wife and children and stable employment history. Further, you would not be associated with Scouts in the future, nor would you be working with children. There was no evidence she urged to find you presented as a risk of re-offending. I discussed with Ms Keating the lack of an ‘expert’ report specifically addressing risk.
70 After some discussion Ms Keating tendered a report from Mr David Ball, Forensic Psychologist, dated 8 June 2018 (Exhibit 2) who assessed you on 28 May 2018. The report did not suggest the application of the principles in R v Verdins & Ors[10] and I note such were not urged by Ms Keating anyway.
[10] (2007) 16 VR 269
71 Mr Ball conducted a risk assessment and concluded you were a low risk of recidivism (I note despite your denial of this offending to him).
72 I am comforted by Mr Ball’s assessment of your level of risk.
73 Both counsel addressed me regarding s5AA Sentencing Act 1991, which came into operation on 5 April 2017 and is applicable to your offending.
74 Mr Batten submitted s5AA applied to all the charges on the Indictment of which you had been found guilty. You were a scout leader, approved to work with children, a well-regarded leader. But for your prior good character, you would not have been in a position that enabled you to have contact with Sara and to secure her parents trust.
75 Your good character, he submitted, nevertheless still applied when assessing your prospects of rehabilitation and risk of re-offending.
76 Mr Batten submitted Ms Keating’s written submissions (Exhibit 1, paragraph 20-21) addressed the common law position and not s5AA.
77 Ms Keating submitted s5AA did not apply to Charges 3, 4 and 5 because the factors underlying s5AA were the same criteria that underlay care, supervision and authority and breach of trust. From the 2nd Reading Speech relevant to s5AA Ms Keating referred to the following:
“The policy intention behind part 5 of the bill is to prevent offenders from benefiting from their previous good character or lack of previous findings of guilt or convictions where those factors assisted the offender to commit a child sexual offence. By prohibiting these factors from being considered in mitigation of sentence, it is anticipated that part 5 of the bill may lead to a minor increase in sentence lengths for certain offenders. The extent to which this will happen remains to be seen, due in part to that fact that at common law, that an offence involved a breach of trust is treated as an aggravating factor. (In some cases, but not all, the circumstances will be such that both ‘good character’ and ‘breach of trust’ will be relevant to the sentencing of an offender.)”
78 I refer to the Explanatory Memorandum to the Justice Legislation Amendment (Victoria) Bill 2017 referrable to s5AA(1) as moderating the operation of s5(2) Sentencing Act 1991, specifically s5(2)(f) and (g).
79 The intention of s5AA(1) was to alter sentencing law and give effect to recommendation 74 of the Royal Commission into Institutional Responses to Child Sexual Abuse Justice Report. Recommendation 74 was that:
“All state and territory governments (other than New South Wales and South Australia) should introduce legislation to provide that good character be excluded as a mitigating factor in sentencing for child sexual abuse offences where that good character facilitated the offending, similar to that applying in New South Wales and South Australia.”
80 Of assistance in understanding the operation of s5AA was R v Knoote-Parke[11]. The relevant South Australian legislation at the time that case was decided was found in s10(3)(ba) Criminal Law (Sentencing) Act 1988 (SA). Section 10(3) then stated:
[11][2016] SASCFC 37
"(3) In determining the sentence for an offence, a court must not have regard to any of the following:
(ba)the good character or lack of previous convictions of the defendant if—
(i)the offence is a class 1 or class 2 offence within the meaning of the Child Sex Offenders Registration Act 2006; and
(ii)the court is satisfied that the defendant's alleged good character or lack of previous convictions was of assistance to the defendant in the commission of the offence."
81 I note s10(3)(ba)(i) and (ii) of the South Australian legislation is now found in identical terms in s11(4)(c)(i) and (ii) Sentencing Act 2017 (SA).
82 Section 5AA(1) Sentencing Act 1991 (Vic) states in similar terms:
(1) Despite section 5(2), in sentencing an offender for a child sexual offence, a court must not have regard to the offender's previous good character or lack of previous findings of guilt or convictions if the court is satisfied the offender's previous good character or lack of previous findings of guilt or convictions was of assistance to the offender in the commission of the offence. (underlining added)
83 Mr Batten submitted I should be so satisfied for the reasons stated in his written submissions (Exhibit A paragraph 12(3) including footnotes).
84 Ms Keating submitted that to disentitle you from relying upon previous good character in mitigation of sentence would amount to ‘double punishment’ as the aggravating feature of care, supervision or authority (Charges 3, 4 and 5) embraced the criteria relied upon in support of the application of s5AA.
85 In my opinion the words in s5AA, specifically ‘was of assistance to the offender in the commission of the offence’, is not encompassed by ‘care, supervision or authority’ of the accused and does not amount to double punishment. In my opinion, s5AA addresses a different point to care, supervision or authority. Section 5AA considers the common law.
86 In Knoote-Parke, Doyle J however referred to s10(3)(ba) requiring close analysis, due to the overlap on the one hand and considerations such as good character and lack of previous convictions, and on the other hand, prospects of rehabilitation and likelihood of re-offending.
87 Doyle J concluded the preferable construction of s10(3)(ba) operated only to exclude good character and lack of previous convictions as relevant considerations (or mitigatory factors) in their own right under s10(1)(i):
“However, it does not operate to prevent the Court having regard to prospects of rehabilitation (and likelihood of re-offending) in light of the facts as a whole, including facts which might also have justified findings that the defendant was of good character and had not engaged in previous offending.” [79]
88 My finding referrable to s5AA does not, however, preclude your previous good character or lack of previous findings of guilt or convictions as being relevant to assessment of factors such as your prospects of rehabilitation and risk of re-offending. In that regard I assess your prospects of rehabilitation as good and am comforted by the opinion of Mr Ball as to low risk.
89 There were five references before me.
90 From Casey Gray, Scouts Victoria, dated 15 June 2018. She had known you for over eight years through Scouts and also socially outside Scouts. She described you as an intelligent, honest and respectable man, always there to help.
91 You had spent over the last three years climbing with the Climbing Council of Scouts Victoria, and later began training to become one of the members of the team.
92 Your offending was out of character. You had always been responsible and trustworthy.
93 A reference from Adam Parker, dated 15 June 2018, a Scout leader at First Gisborne Scouts. He had known you for approximately five years and he described you as supportive and encouraging. Mr Parker would attend camp and activities as a parent helper. You were the reason he decided to become a Scout leader and he would watch and learn from you.
94 He had always found you to be professional, instilling the importance of following Scout rules and protocols.
95 Your mentorship had been a great help to him in his employment at the Malmsbury Youth Detention Centre.
96 There was a reference from Ingrid Wilkie, dated 18 June 2018. Your family and hers have been friends since 2010. Over the years you had been involved with her daughter, Emily, as her Scout leader and mentor, when she attended First Gisborne Scouts. She had always entrusted the care of her daughter, now 15, to you and other Scout leaders. She had never had to consider or question the safety and wellbeing of her daughter in your presence.
97 There was also a reference from Emily King, dated 18 June 2018, daughter of Ingrid Wilkie. Ms King described you as always being caring towards her, and that after you stopped being a Scout leader she lost interest in attending.
98 There was also a reference from Martin Stockdale, dated 12 June 2018. He first met you and your wife approximately twenty-three years ago through the Uniting Church in Gisborne. You then, after some time apart, reconnected through the Gisborne scouting movement. He described you as compassionate for helping others and of spending incalculable hours on weekends constructing and refitting a group Scout hall. He described you as trustworthy and honest. He described attending Scouts with you. He referred to you approximately six years ago, when he went on a family holiday for six weeks you offering to assist with the running of his property to enable him to take that holiday. He also referred to you assisting when the family farm was under threat from a fast-moving bushfire. He described you as a true friend.
99 As I have said, on all the material before me I am satisfied your prospects of rehabilitation are good and in that regard I refer to Knoote-Park [79], and that in sentencing you I must seek to maximise your prospects of rehabilitation as they may be.
100 There were three victim impact statements before me. They are eloquent and it is difficult to do justice to them in these brief sentencing remarks, but I have read each of them.
101 There was a statement from Sara Mason. She thought she was safe with you and thought she could trust you. She felt scared and said she could not tell others what had happened without being embarrassed.
102 She stopped doing activity she loved including scouts after they told her she could not come back. She had been isolated from others. She had been diagnosed with an eating disorder. She suffered with anxiety, depression and PTSD which was made worse by your offending. Doctors and her counsellor had helped her.
103 There was a victim impact statement from Jeffrey Mason (Sara’s father), who described the deteriorating relationship with her as a result of your sexual abuse of his daughter. The family unit had been violated and robbed of happiness. His mental state had ‘taken a big hit’ which affected his relationship with his wife. Counselling and therapy had helped, albeit at a large financial cost. He felt betrayed by you, his family trusted you to care for Sara at scouts.
104 There was a victim impact statement from Barbara Mason (Sara’s mother). Your offending made her feel violated, hurt and confused. The family felt housebound. Places where they had previously felt comfortable now felt unsafe, such as attending church where your family attended. Barbara had trouble sleeping. She suffered with depression and anxiety. Sara’s schooling had stopped. She was now sexualised, angry and bitter. Barbara saw a doctor and counsellor regularly.
105 Also relevant is the notion of social rehabilitation. A number of authorities have referred to the effects upon a victim of sexual offending, including DPP v Toomey[12], in which his Honour Justice Vincent referred to social rehabilitation citing DPP v DJK[13].
[12] [2006] VSCA 60
[13] [2003] VSCA 109
106 The effects upon a victim are a relevant sentencing consideration (see s5 Sentencing Act 1991). I am conscious, however, that I must not allow the effects upon a victim to swamp the sentencing process.
107 As well as matters personal to you, to which I have referred including your prospects of rehabilitation, I must also take into account general deterrence which is of considerable importance in a case such as this.
108 The courts have repeatedly referred to the seriousness of sexual offending involving children. See Burnett v R[14], Roosmalen v R[15], Wayland[16], Parente[17], and recently DPP v DJK[18], DPP v CPD[19] and Clarkson v The Queen[20]. This list is by no means exhaustive.
[14] (1993) 70 A Crim R 469
[15] (1989) 43 A Crim R 358
[16] 14/9/1992 CCA Victoria
[17] (2004) 10 VR 234
[18] [2003] VSCA 109
[19] [2009] VSCA 114
[20] [2011] VSCA 157
109 I must also consider the need for specific deterrence when sentencing you. Whilst I am aware you do not have any prior criminal history, or subsequent for that matter, your offending was not an isolated incident, rather occurred over a significant period of time and on multiple occasions.
110 I must also consider the question of the protection of members of the community from you and bear in mind your likelihood of re-offending. I am comforted in that regard by the assessment of Mr Ball.
111 I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
112 When sentencing you I take into account the principles of totality and proportionality, and I am also mindful of course of Matheas when sentencing serious sexual offenders.
113 I sentence you as follows.
114 On Charge 1, you are convicted and sentenced to 18 months’ imprisonment.
115 On Charge 2, you are convicted and sentenced to 2 years’ imprisonment.
116 On Charge 3, you are convicted and sentenced to 5 years’ imprisonment.
117 On Charge 4, you are convicted and sentenced to 5 years’ imprisonment.
118 On Charge 5, you are convicted and sentenced to 6 years’ imprisonment.
119 On Charge 10, you are convicted and sentenced to 12 months’ imprisonment.
120 On Summary Charge 3, you are convicted and fined $300.
121 On Summary Charge 20, you are convicted and fined $300.
122 I turn then to the orders of cumulation and concurrency.
123 Charge 3 is the base sentence, and I direct the following: Listen carefully because part way through when he becomes a serious sexual offender I will change the wording of the sentence.
124 I direct that 6 months of Charge 1 be served cumulatively upon Charge 3.
125 I direct that 10 months of Charge 2 be served cumulatively upon Charge 3.
126 I direct that 4 years of Charge 4 be served concurrently and 12 months cumulatively upon Charge 3.
127 I direct that 3 years and 6 months of Charge 5 be served concurrently and 2 years and 6 months cumulatively upon Charge 3.
128 I direct that 6 months of Charge 10 be served concurrently and 6 months cumulatively upon Charge 3.
129 The orders for cumulation are upon each other and upon the base sentence.
130 That results in a total effective sentence of 10 years and 4 months’ imprisonment and I direct you serve a period of 7 years and 4 months before you are eligible for parole. I will check with counsel in a minute if you have got the figures.
131 Pursuant to s18(4) Sentencing Act 1991 I declare you have spent 110 days in custody (up to and including 9 July 2018) by way of pre-sentence detention and I direct that be entered into the records of the Court.
132 I also direct it be entered into the records of the Court you have been sentenced as a serious sexual offender on Charges 3, 4, 5 and 10.
133 As previously stated, by virtue of the finding of guilt in relation to these charges, you are required to report pursuant to the Sex Offenders Registration Act 2004 for life, such being mandatory. Ms Keating agreed, as I have said, such applied to you.
134 My associate in a moment will come back to you with some documents to sign about the Registration Act. I have made the order, you are not being asked if you want to be on the order or be ordered on that Act, all you are being asked to do is sign for the relevant paperwork that tells you about the order. If you do not want to do it, it does not matter, she has to ask you anyway.
135 The prosecution made application for a forensic sample pursuant to s464ZF Crimes Act 1958. This was consented to by counsel on your behalf and I make the order in the terms sought. It will be for a saliva sample, and I make the order on the basis of the seriousness of your offending. I must advise you the authorities may use reasonable force in order to obtain that sample.
136 The prosecution also made application for a disposal order. This was consented to by counsel on your behalf, and I make the order in the terms sought.
137 Any other orders? No? I do not think so. Let us just check a few things. Did you keep up with the mathematics and so on? Do you need me to read out the figures of the sentence again or did you get them down?
138 MS BLEAZBY: Your Honour, can you read out the orders for cumulation again?
139 HER HONOUR: Yes. Charge 3 is the base sentence and I direct the following regarding cumulation and concurrency. I direct 6 months of Charge 1 be served cumulatively upon Charge 3. I direct that 10 months of Charge 2 be served cumulatively upon Charge 3. I direct that 4 years of Charge 4 be served concurrently and 12 months cumulatively upon Charge 3.
140 I direct that 3 years and 6 months of Charge 5 be served concurrently and 2 years and 6 months cumulatively upon Charge 3. I direct that 6 months of Charge 10 be served concurrently and 6 months cumulatively upon Charge 3.
141 As I have said, orders for cumulation are upon each other and upon the base sentence.
142 MS BLEAZBY: Thank you, Your Honour.
143 HER HONOUR: That should come to 10 years and 4 months' imprisonment. Did you get the maths?
144 MS BLEAZBY: Yes, Your Honour.
145 HER HONOUR: Did you get the maths, Ms Keating?
146 MS KEATING: I am just still working it out, Your Honour.
147 HER HONOUR: I direct that a period of 7 years and 4 months. Have a go at that. I have to word it differently as you know because he becomes a serious sex offender.
148 MS KEATING: I think Your Honour is right.
149 HER HONOUR: That is good. I am not asking if you agree with the figures, just if they added up and you needed me to read them out again. That was the reason for the question. What do you say about PSD? 110 as of yesterday up to and including?
150 MS BLEAZBY: Yes, Your Honour.
151 HER HONOUR: Do you agree with that?
152 MS KEATING: Yes, Your Honour.
153
HER HONOUR: Excellent. That will be entered into the records of the court, as is the Serious Sex Offender Provisions on sentence on 3, 4, 5 and 10.
Ms Jackson is going to go down to the back of the room with the Registration Act document. You can pop back there if you wish too, Ms Keating. It is purely acknowledging receipt of the paperwork, nothing more.
154 Yes, thank you both, counsel. Mr Schulz, you will need to go out. Thank you.
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