Director of Public Prosecutions v Schwartz (a pseudonym)
[2023] VCC 732
•8 May 2023
| IN THE COUNTY COURT OF VICTORIA AT Latrobe Valley CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Sexual Offences List
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TONY SCHWARTZ (a pseudonym) |
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JUDGE: | HIS HONOUR JUDGE DEMPSEY | |
WHERE HELD: | Latrobe Valley | |
DATE OF HEARING: | 4 April 2023 | |
DATE OF SENTENCE: | 8 May 2023 | |
CASE MAY BE CITED AS: | DPP v Schwartz (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 732 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence.
Catchwords: Incest, indecent act child under 16, offending against daughter over 4 years, serious harm to victim, delay in reporting offending, no further offender in more than 20 years, offender now in 70’s, late plea, very limited insight into harm done, serious offender provisions.
Legislation Cited: Crimes Act 1958; Sentencing Act 1991; Sex Offenders Registration Act 2004.
Cases Cited:DPP v Walsh (a pseudonym) [2018] VSCA 172; DPP v Dalgliesh (a pseudonym) [2016] VSCA 148; DPP v Tewksbury (a pseudonym) [2018] A Crim R 205; Grantley (a pseudonym) v The Queen [2018] 272 A Crim R 340; Bugmy v The Queen [2013] HCA 37; R v Verdins (2007) 16 VR 269; Worboyes v The Queen [2021] VSCA 169; DPP v Bourke [2020] VSC 130; Chenhall v The Queen [2021] VSCA 175; R v DD (No 2) [2008] VSCA 15; Mush v The Queen [2019] VSCA 307; R v RLP [2009] VSCA 27; Fichtner v The Queen [2019] VSCA 297; R v Beary (2004) 11 VR 151; DPP v Hardin (a pseudonym) [2018] VCC 1834; DPP (Vic) v Wilson (a pseudonym) [2018] VSCA 263; DPP v Shearer (a pseudonym) [2019] VSCA 47; DPP v Dalgliesh (a pseudonym) [2017] HCA 41.
Sentence: TES of 7 years 2 months with non-parole period of 4 years 9 months. 34 days PSD. Section 6AAA declaration: 9 years 3 months with a non-parole period of 7 years. SORA registration for life.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. D'Arcy Ms J. Barnden | Office of Public Prosecutions |
| For the Accused | Ms C. Randazzo SC | Tyler Tipping and Woods |
HIS HONOUR:
INTRODUCTION
1Tony Schwartz,[1] you have pleaded guilty to:
(a) One charge of Incest between 1 March 1994 and 9 August 1998 (rolled-up) pursuant to s 44(1) of the Crimes Act 1958. The maximum penalty for that offence is 20 years.[2]
(b) Charge 2, Indecent Act with Child Under 16 between 1 March 1994 and 9 August 1998 (rolled up). The maximum penalty for this charge (and Charge 3) is 10 years’ imprisonment.
(c) Charge 3, Indecent Act With Child Under 16 between 10 August 1994 and 27 September 1994.
[1]A pseudonym.
[2]The penalty for Incest was increased from 20 years to 25 years on 1 September 1997 pursuant to the Sentencing and Other Acts (Amendment) Act 1997. The increased penalty applies to offences committed on or after 1 September 1997. However, because Charge 1 straddles the period of amendment, the accused receives the benefit of the lower maximum penalty. Further the standard sentence provisions do not apply to this proceeding as the offending occurred prior to 20 March 2017 when the regime was introduced.
OFFENDING[3]
[3]Taken from Exhibit A: Summary of Prosecution for Plea dated 4 November 2022.
Background
2You were born in 1948 and were aged between 46 and 50 years old at the time of the offending.
3The Complainant in this matter, Lynda Schwartz,[4] is your daughter. She was born in 1982 and was aged between 11 years old and 16 years old at the time of the offending.
[4]A pseudonym.
4During the period of the offending, you resided with your family, namely;
(a) Yvette Schwartz[5] (your then wife and Lynda Schwartz’s mother);
(b) Phil Schwartz[6] (your eldest son and Lynda Schwartz’s brother, born in 1980);
(c) Raymond Schwartz[7] (your youngest son and Lynda Schwartz’s brother, born in 1991); and
(d) Karla Schwartz[8] (your youngest child and Lynda Schwartz’s sister, born in 1992. Karla passed away in 1996).
[5]A pseudonym.
[6]A pseudonym.
[7]A pseudonym.
[8]A pseudonym.
5In 1994, the family residence underwent a renovation, comprising the addition of an extension to include an extra bedroom and a study.
Circumstances of offending
Incident 1
6On a morning between 1 and 31 March 1994, when Lynda was 11 years old, you entered her bedroom. Lynda was awake and lying in her bed. You pulled back the blankets and pushed your way into the single bed with Lynda.
7You put your hand under Lynda’s clothing and gently rubbed her clitoris, moving your fingers past her labia majora in order to do so. This is part of Charge 1 – Incest, that is a part of a rolled- up charge.
8You also touched Lynda’s breasts under her clothing, as well as kissed and licked them. This is part of Charge 2 – Indecent Act With A Child Under 16.
9You further forced Lynda to kiss you with an open mouth and put your tongue into her mouth. This is an uncharged act.
10This incident lasted for approximately half an hour.
11At the time of the incident, Yvette Schwartz was in Melbourne with your youngest child Karla at the Royal Children’s Hospital. Phil Schwartz was preparing to travel to Melbourne to play cricket later in the day.
12Following this incident, Lynda told a teacher at her primary school what you had done to her.
Incident 2
13On an evening between 10 August and 27 September 1994, when Lynda was 12 years old, you entered her bedroom. Lynda was in her bed trying to sleep and could hear her mother taking a bath. You got into bed with Lynda and your hand under Lynda’s clothing and touched her clitoris. This is again part of rolled-up Charge 1 – the rolled-up charge of incest.
14You also touched Lynda’s breasts under her clothing, as well as kissed and licked them. This is part of part of rolled-up Charge 2 – Indecent Act With A Child Under 16.
15You forced Lynda to kiss you with an open mouth and put your tongue into her mouth. Again, this is part of the uncharged acts.
16After a period of time, you positioned Lynda so that she was sitting upright on the edge of her bed, facing you. You then attempted to insert your penis into her vagina but was unsuccessful. Your penis touched against Lynda’s vagina but did not penetrate her. This is the standalone charge, Charge 3 – Indecent Act With A Child Under 16.
17When Lynda was approximately 13 or 14 years old she told her mother, Yvette, what you had been doing. Yvette spoke to you and assured her daughter that it would not happen again. It seems that this assurance was not honoured by you.
Incident 3
18Between 10 August 1996 and 9 August 1998, when Lynda was between 14 and 15 years old, you entered the bathroom of the family home whist Lynda was naked in the bathtub. You ‘played’ with your daughter’s breasts which is part of rolled-up Charge 2 – Indecent Act With A Child Under 16 and her clitoris, moving your fingers past her labia majora in order to do so. That is part of rolled-up Charge 1 – Incest. At the time of this last incident, Lynda had reached puberty.
19Whilst you were touching Lynda, Yvette entered the bathroom. You stopped touching your daughter, stood up and proceeded to wash your hands. When asked by your then wife what you were doing, you responded that you were simply washing your hands.
Complaint
20Towards the end of 2000, when Lynda was 18 years old, she told her mother what you had done. After this disclosure, a lock was installed on Lynda’s bedroom door but it was installed in such a way that meant you could still open the door from outside the bedroom. On the very evening the lock was installed, you entered Lynda’s bedroom four or five separate times. No offending is said to have occurred during those entries.
21Lynda retrieved a screwdriver from the shed and reinstalled the lock so the door was locked from inside of her bedroom.
22In early 2001, Lynda moved away to study at university.
23She disclosed the offending to her partner, Casey Garcia,[9] in June 2020 and reported the incidents to police shortly thereafter.
[9]A pseudonym.
Arrest and interview
24You were interviewed by police on 5 August 2020 and denied any wrongdoing.[10] You repeatedly denied, refuted or disputed the allegations made against you. Other times you said you could not recall events connected with your offending. You were released pending further investigations.
[10]Depositions, p 145.
25Ultimately you were charged with a number of offences on 21 November 2020.
Case history
26Having been charged in late 2020, you were placed on summons, and spent no time in custody in relation to this matter until I remanded you on the date of the plea being 4 April 2023.
27A contested committal hearing was conducted on 11 and 12 July 2021 where Lynda, Yvette, Casey, Raymond and Phil were all cross-examined. The complainant’s account of each of the matters before me on the plea indictment were explored in fine detail, especially whether the issue of penetration or not occurred.
28Having been committed for trial, the matter proceeded to a case conference on the 9 February 2022 (where the argument was advanced on your behalf and on instructions that any charges of a penetrative nature or those or real regularity ought not proceed in favour of a plea of guilty to a charge of indecent act with a child under 16)[11] and later a Sentencing Indication Hearing was listed on the 30 July 2022. The Sentencing Indication Hearing did not proceed as Judge Tinney refused to give one. I am told that the matter resolved in any event on 27 July 2022. That resolution obviously and finally involves an acceptance by you that you sexually penetrated your own daughter.
[11]See Transcript of Case Conference before Judge Wilmoth on 17 February 2022; Transcript of Sentence Indication Hearing before Judge Tinney on 1 August 2022.
29I am urged initially to consider this to still be an early plea of guilty. I consider it anything but an early plea when it comes to the most serious of the offending — that charge involving penetration. Your plea of guilty has real and obvious value, and the way I treat it will be explained later in my reasons.
30The plea proceeded before me on 4 April 2023. I remanded you and adjourned for sentence to today being 8 May 2023.
Gravity and culpability of this offending
31Sexual offending against children, particularly those under an offender’s care and protection, is a gross breach of trust justifying a term of imprisonment. Your Counsel and the Prosecutor sensibly agreed as much.
32Incest is an appalling crime. It is by definition, an offence of very high culpability.
Since it is so obviously contrary to every tenet of parental care for children, and since every parent (or parental figure, as is the case here) is taken to understand that sexual activity is absolutely prohibited.[12]
[12]DPP v Walsh (a pseudonym) [2018] VSCA 172 at [33].
33It is inherently a crime of violence. As a category of offending it represents egregious conduct, and any sentence imposed must reflect this. The same can be said of the indecent act against a child under 16 charges.
34It is clear, however, that this crime, like all others, carry with it different levels of seriousness. As has been stated in previous authorities,[13] in assessing the relative seriousness of any offence of incest, it is necessary to consider the nature and extent of the offending, its frequency and duration, and the circumstances in which it occurs, the culpability of the offender and the impact on any victim.
[13]DPP v Dalgliesh (a pseudonym) [2016] VSCA 148; DPP v Tewksbury (a pseudonym) [2018] A Crim R 205 (‘Tewksbury’); Grantley (a pseudonym) v The Queen [2018] 272 A Crim R 340 (‘Grantley’).
35Here, on a number of separate occasions you engaged in sexual activity with your daughter.
36Lynda was as young as 11 at the time you first offended against her. Charge 1 involves acts of incest on three occasions by touching her clitoris. The first occasion was in March 1994 (Incident 1 which lasted half an hour), the second between August and September 1994 (Incident 2) and the third between August 1996 and August 1998 (Incident 3).
37Charges 2 and 3 — the indecent act with a child under 16 years charges occurred during the Incidents 1–3, by the touching/kissing/playing with your daughter's breasts. On one occasion (namely Charge 3) you engaged in non-penetrative touching of your daughter’s vagina with your penis that I consider a particularly serious event on its own.
38Your offending represents a fundamental breach of your familial relationship, and, accordingly, represents a breach of trust, a significant factor in assessing the objective gravity of your offending, and your level of culpability for it. You violated your own daughter in her own home (where she was entitled to feel safe and loved) which further accentuates the gravity of your offending.
39Your offending took place over a period of up to four years. The repetition of your behaviour also accentuates the gravity of your offending overall.
40I accept that there is an absence in your case of any grooming behaviour, any force or coercion or additional violence or degradation which is sometimes associated with this offending.
41Whilst it was conceded that the offending here is egregious and serious and thus must attract a term of imprisonment to be served immediately, it is nonetheless lacking in some of the aggravating features commonly involved in incestuous offending.
42There was no penile penetration of any kind, which meant there was no risk of impregnation or the contracting of sexually transmitted diseases. There was no ejaculation or recording of the sexual acts or inducement to avoid detection or reporting.
43You stand to be sentenced in respect of three discrete incidents, each of which involved more than one offence but nonetheless committed at the same time.
44It was submitted that in all the circumstances the gravity of the present offending is ‘mid-range’ and the total effective sentences should reflect such gravity. In as helpful as such descriptions can be in assessing gravity of offending, I tend to agree that the offending is at the very least in the ‘mid-range’. It is certainly not towards the lower end of the spectrum of seriousness for offences of this kind that appear in this court.
Victim impact
45This offending, it has had nothing short of catastrophic effects on your victim. As a mark of her strength and resilience she has created a life for herself, furthering her vocational goals and education. She has done so despite the adversity she has faced because of your offending. In an articulate and moving Victim Impact Statement,[14] Lynda talks of the heartbreaking breach of trust she experiences as a result of this offending. She was conditioned not to trust others before she was even a teenager, when other family traumas were afflicting your lives. It diminished her sense of safety and enjoyment of life. She considered moving away to University as a chance to escape you. Her distrust of people still persists and caused a palpable sense of isolation and anguish. She was in forever two minds who to disclose her abuser to. Her relationship with her mother will probably never recover and she still does not know why you did to her what you did.
[14]Exhibit B: Victim Impact Statement of Lynda Schwartz dated 31 October 2022.
46Almost half of Lynda’s life has been spent dealing with the consequences of your treatment of her. This pain, upset and abiding sense of betrayal is the emotional cost of your offending that persists 20 years after it commenced. This is hardly the legacy a father should leave for his daughter.
MATTERS PERSONAL TO THE ACCUSED
47You were born in New South Wales in 1948 and are currently 74 years of age.
48I will summarise the salient features of your life as follows.[15]
[15]Your family background is set out at 2.0 of Dr Cunningham’s report (Exhibit 2) and at paragraphs [5]–[23] of Ms Sandra Cokorilo’s report (Exhibit 3).
49Your father was an alcoholic and a violent man who would turn his attention on you if you intervened when he was assaulting your mother. You are still affected by this part of your upbringing and understandably so. Though Bugmy[16] was not expressly raised, it was still a childhood and adolescence marred by both abuse and lack of parental connection.
[16]Bugmy v The Queen [2013] HCA 37 (‘Bugmy’).
50Your sister complained to you that your father sexually molested her. You confronted your father (when you were 22) who badly injured you. You described this as your father attempting to have a ‘relationship’ with your sister. I cannot help but see a similar pattern emerge through the way that you treated your own daughter many years later, as I will outline below. The way that you were raised goes quite some way to explain the distorted attitudes that might explain (but not excuse) how you offended in this way, and why you continue to struggle to understand the damage that you have done.
51You married at age 19 — a union that produced four children but ended when you discovered your wife was having an affair.
52Your second marriage in 1980 was to the mother of the complainant and also produced four children born in 1981, 1982 (the Complainant), 1992 and 1993. The marriage finally ended after the report of the current offending to police.
53Your youngest child, Karla, was diagnosed with a terminal illness which resulted in her death in 1996 at the age of three or four. She required around the clock care.
54You worked in the sawmill industry from the ages of 12 years to 30 years when you then gained employment as a builders’ labourer until early retirement in 1994, shortly after Karla was born. I am told that one of the reasons for this early retirement was to assist in her care.
55After the death of Karla, you performed some very intermittent and infrequent work.
56It was in this period (1994) you were diagnosed with depression and placed on a Disability Pension which continued until the age of 65 years. You were then placed on an age pension.
57The first episode of offending occurred in this period shortly after the forced retirement, diagnosis of depression and when your daughter had been diagnosed. The expert reports shed more light into your motivation for offending, in a moment.
58You yourself have a number of physical health conditions, including:
(a) diabetes Type 2 since 2002 for which you are medicated;
(b) a history of prostate enlargement operated on in 2015 and which requires regular monitoring and review for which you are medicated;
(c) a history of heart issues (irregular heartbeat) first identified about a decade ago and requiring regular reviews and monitoring for which you are medicated; and
(d) C4-C5 vertebrae compression affecting both his arms and requiring surgery about eight years ago which results in arthritis in both of your shoulders.
59None of the conditions were said to make prison particularly more onerous on you, but I am still conscious that I am sentencing a man of advanced years who has a number of health issues that will require treatment and monitoring.
60The principles of R v Verdins[17] were not relied on during your plea but I received in evidence on the plea reports from two forensic psychologists, one from Dr Aaron Cunningham,[18] and the other from Ms Sandra Cokorilo.[19] I found them to be of much assistance.
[17](2007) 16 VR 269 (‘Verdins’).
[18]Exhibit 2: Report of Dr Aaron Cunningham dated 29 July 2022.
[19]Exhibit 3: Report of Ms Sandra Cokorilo dated 3 March 2023.
61A mental state assessment was carried out by Dr Cunningham who concludes that you ‘meet the … DSM-5 criteria for a Persistent Depressive Disorder … stemming from the traumas of abuse from his father and his child’s death’.[20]
[20]Exhibit 2: Report of Dr Aaron Cunningham dated 29 July 2022, p 3.
62Dr Cunningham also administered the RSVP to assess your risk of sexually violent offending and concluded that you present as a Low to Moderate risk of sexual reoffending. He goes on to state:
In my opinion, Mr Schwartz’s offences occurred in a specific context that is unlikely to recur. At the time of the offences, Mr Schwartz was living with his young daughter, experiencing relationship and employment problems and struggling with the trauma of his daughter’s illness and death. At present, Mr Schwartz is single, of advanced age, has prosocial coping strategies through music and art and is not living with young children. In my opinion, Mr Schwartz’s offences occur in a certain context that is unlikely to be replicated.[21]
[21]Ibid.
63At the time of the assessment with Dr Cunningham you stated that your daughter enjoyed the attention that you paid to her. You struggled to really identify any negative consequences of your conduct on her.
64This opinion needs to be read in conjunction with Ms Cokorilo’s observations at paragraph [33] of her report as to the true extent of your distorted thinking:
Mr Schwartz admitted to offending without attempts to deny it. It is however noted that he referred to the sexual interactions between him and his daughter over the course of the offending period as a "relationship". Further, it is noted that he described his father’s sexual advances towards his sister as an attempt for him to establish a "relationship" with her.
65You told Ms Cokorilo that at the time of the offending you felt ‘virtually alone’ and sought ‘some sort of solace from somewhere’ and that at times the victim ‘responded to [me] like a loving daughter’. Consistent with the opinion of Dr Cunningham, Ms Cokorilo acknowledges that this raises ‘concerns about his conceptualisation of what a loving parent-child relationship actually entails’.[22]
[22]Exhibit 3: Report of Ms Sandra Cokorilo dated 3 March 2023, [36].
66It appears to me that you saw your daughter as being able to meet the emotional and sexual needs that you had but were absent from your marriage.
67It is this distorted thinking that no doubt causes this recommendation to be made:
Mr Schwartz would benefit from a disposition that facilitated his rehabilitation. Despite having a lower risk of reoffending, Mr Schwartz would benefit from engaging with psychological intervention to challenge the attitudes that contribute to his offending. Mr Schwartz has suffered consequences for his behaviour with regard to his ex-partner and children ceasing contact. He would: benefit from maintaining some form of positive community connection and support to protect against escalations in depression. Maintaining stability whilst engaging with treatment and community support would improve his prospects for rehabilitation.
68You informed Ms Cokorilo that you did not consider the impacts of your behaviour on your daughter at the time of the offending stating you did not ‘have the intelligence to sort that sort of thing out’.[23]
[23]Ibid [37]. I infer this means emotional intelligence as there is no evidence of any functioning issues.
69You originally asserted that your daughter must not have suffered really as she was truly a success in life. Having read the Victim Impact Statement now, it was asserted that apparently you understand the impact of your offending and that that offending has had on your victim. I do have trouble accepting this.
70You maintained at times[24] the disclosure of these very offences was a way for your daughter to keep her troubled marriage occupied which hints at a persistent lack of insight into the damage you have done.
[24]Ibid [40].
71You provide an explanation of sorts for your conduct, putting it down to the strict, emotionally distant way in which you were raised and asserting you acted the way that you were taught.
72Between paragraphs [57] to [63] of Ms Cokorilo’s report, she sets out the relevant emotional factors, a history of poor interpersonal relationships over the course of your life, the development of cognitive distortions due to poor parental attachment, inappropriate parental modelling, invalidating early environment, poor social skills and personality traits. In combination these factors have contributed to this offending and continue to limit your appreciation of the impacts on the victim. There is sense and truth in that assessment.
73Ms Cokorilo, consistent with Dr Cunningham, assesses your risk of sexual recidivism as low. In a way that is also consistent with Dr Cunningham, Ms Cokorilo agrees that you would most likely benefit from engagement with a psychologist with forensic experience in the treatment of sex offenders.
74Ms Cokorilo says you have poor insight and judgment about your behaviour. Whilst you might regret your conduct, you fail still to fully appreciate the effect it has had on your victim.
75Ms Cokorilo opines,
Mr Schwartz is a 74-year-old male who is before the Court for historical sexual offending against his daughter. He presents with limited criminal history from 1977 and there is no evidence of prior sexual offending or sexual deviation. Although the offending occurred when his daughter was between the ages of 11 and 16, Mr Schwartz denied any attraction to children, and his offending is considered opportunistic in nature rather than driven by paedophilic interests.
Prior conviction
76You pleaded guilty in the Morwell County Court to charges of fraud and theft in 1977 and received a sentence of imprisonment of three years with a minimum non‑parole period of 19 months. That is your only prior conviction. You served 12 months before being paroled.
77That offending related to theft over 4 or 5 years of money belonging to the owners of the business you worked for. The offending occurred when you were 28 years of age and is obviously not of a sexual nature. You did not offend in any way until 1994–1998 when you committed this offending. Since 1998 you have not re‑offended in any way either.
78That prior matter is now so historical and of such a different nature, it plays little to no part in the sentencing calculus for the matter I am sentencing you for now.
Character since
79You have been involved in a voluntary capacity in many and varied community organisations including:
(a) Coaching & Umpiring – junior football (seven years);
(b) Coaching – junior cricket (10 years);
(c) Assistant Medical Trainer & Runner – Senior Football Club;
(d) Founded specific cultural appreciation societies; and
(e) Performing at many fund raising events.
80From 2002, you had some talent of an artistic nature and gained some notoriety because of that talent, both here and interstate.[25]
[25]I received as Exhibit 5 copies of press clippings and photographs relating to your performances.
81Until your remand, you volunteered at a local Golf Course. These pro-social factors of your life, I consider to be protective.
82You rented a room from a friend and did the gardening and cooking in return for a reduced rental rate.
83None of your children communicate with you and your entire family have cut ties with you.
84You have not disclosed this offending to others, apart from Ms Monica Hughes[26] and seem to have no meaningful supports in the community in the sense that people apprised of your offending can and will support you. It is also unlikely that you will receive many, if any, visitors. Prison will be a lonely experience for you and I take that isolation that you will experience into account.
[26]A pseudonym. See Exhibit 4: Reference of Monica Hughes dated 30 March 2023.
85You have continued to be involved in the lives of children and young people long after your offending without incident. It lends support to the proposition that your offending was situational and very much focused on your daughter and not the result of a more deep-seated or entrenched desire to offend against children more generally. This is important when I consider the risk that you might pose to the community.
MATTERS OF SENTENCING PRINCIPLE
Incest and offences against children
86I have already dealt with specific aspect of sentencing when dealing with the offences above. Your counsel acknowledges the important roles that general deterrence and denunciation play in the present sentencing exercise.
Plea of guilty
87Your plea of guilty came at a late stage, but still one which can be best described when the State was in the midst of a pandemic. It needs to attract a significant discount on that account alone. Accordingly, the plea is of real utilitarian value, especially in the context of the COVID-19 pandemic, as observed by our Court of Appeal in Worboyes v The Queen:[27][28]
a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic’s effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time… [The sentencing judge] must ensure, that the plea of guilty results in a perceptible amelioration of sentence.
[27][2021] VSCA 169, [39]. See also DPP v Bourke [2020] VSC 130, [32]; Chenhall v The Queen [2021] VSCA 175, [34]–[35].
88The issue of remorse is a more vexed question. You can at times use the language of remorse and contrition to both Ms Cokorilo and Dr Cunningham, which is somewhat undermined by your inability to really grasp the scale of damage you have caused to your daughter. I find that you are able to some extent express remorse as much remorse as your makeup allows you to, but full remorse (involving as it does real insight) is something that is developing and may evolve and emerge further with treatment.
Delay
89Delay was relied on in two ways. First it was said the delay in reporting the matter by the victim for close to 22 years after its conclusion created the situation of this matter ‘hanging over your head’ for a period of time as well as meaning you are now to be sentenced as an older man with several health issues who fears you might die in prison. I certainly accept the three years between charge and sentence created a sense of uncertainty in you[29] (although it is harder to conclude that the decades between offending and charge weighed heavily on your conscience). Second, you have reformed in the interim and demonstrated you are now a low risk of repeating such offending.
[29]And perhaps too, the additional charges that were laid during Covid as a result of a further statement made by the victim resulting in some further delay in the proceedings.
90You are now 75 years old. Any sentence of imprisonment imposed will likely represent a significant proportion of your remaining life. Prison will be harsh for you, particularly now in the present custodial environment (still grappling in many ways with the pandemic) and your advanced age.
91However, the effect of the delay on the victim must also be considered,[30] and a sentence should not be moderated purely because the offender is significantly older as a result of the delay.[31] This is often a feature of sexual offending against children — it takes time for them to disclose the abuse they suffered, as it did here.
[30]R v DD (No 2) [2008] VSCA 15, [22].
[31]Mush v The Queen [2019] VSCA 307, [98].
92Just punishment, proportionality and deterrence always remain primary sentencing considerations, regardless of the offender’s age.[32] So too, it is relevant to the offender’s prospect for reform.
[32]R v RLP [2009] VSCA 27, [39]. See also Fichtner v The Queen [2019] VSCA 297, [90], [95].
Rolled-up charges
93Rolled up charges are different of course from representative ones because they are a collection of identifiable charges bundled together in a single count. Rolled‑up charges also require the offender’s agreement and are only for the purposes of a guilty plea. They simplify the sentencing court’s task and work to the benefit of the offender by allowing multiple instances of similar offending to be dealt with as a single charge rather than through numerous separate charges. That is obviously the case here, and it confirms ultimately the cooperative approach the accused has taken in resolving the matter.
94When sentencing on a rolled-up charge, the court must consider all the circumstances of the offence and the offender including if the offending was carried out over an extended period, victimised multiple persons, and the totality of the harm described in the charge.
95While the Court may consider all the relevant circumstances of a rolled-up charge, the pleading must still be treated as presenting a single formal charge. The maximum penalty is therefore limited to the maximum for a single charge.[33]
[33]R v Beary (2004) 11 VR 151, 157 [14].
Serious offender provisions
96Part 2A of the Sentencing Act 1991 (the Act) is applicable to Charge 3 on the Indictment. Charges 1–3 on the Indictment constitute ‘sexual offences’ within the meaning of s 6B(1) of the Act. Upon conviction on Charges 1 and 2 you fall to be sentenced as a serious sexual offender on Charge 3.
97Pursuant to s 6E of the Act any term of imprisonment imposed on Charge 3 must be served cumulatively to the sentence imposed on Charges 1 and 2 unless otherwise directed.
98Pursuant to s 6F(1) of the Act it must be entered in the records of the court that the offender has been sentenced as a serious sexual offender in respect of Charge 3.
99Accordingly, protection of the community becomes the principal sentencing consideration. The Crown do not urge a disproportionate sentence to be imposed to achieve this objective.
100Your Counsel submitted that protection of the community ought not be paramount, which is contrary to the language of the provision. I find that I can impose a sentence giving protection of the community primacy, which needs not result in an inordinately long period of removal from the community.
101The protection of the community as a concept must be viewed in light of the risk of re-offending that you now pose, which I agree is low (or lower moderate) as opined by both Ms Cokorilo and Dr Cunningham.
Prospects for reform
102The prospects that you do enjoy will no doubt be enhanced by involving yourself in the sexual offenders program in prison. Ms Cokorilo recommends,
engagement with a forensic psychologist experienced in the treatment of sex offenders and that such intervention should include cognitive modifications focusing on attachment, intimacy, relationships, beliefs about sex, problem solving, and personal factors such as his personality factors that may have contributed to his offending.[34]
[34]Exhibit 3: Report of Ms Sandra Cokorilo dated 3 March 2023, [76]
103I am aware that such treatment and change in you will need to be practiced eventually in the community and I must not lose sight of the importance in allowing for you to re-enter society (with supervision and treatment) at some point in the future. The non-parole period I set will reflect this.
Totality
104I am mindful of the significance in this case of the application of the principle that requires me when sentencing you for multiple offences to ensure the aggregate term I impose is just and appropriate measure of the total criminality involved. There must be appropriate relatively between the totality of all the criminality and the totality of the sentence I impose. This is true when I consider the interaction between the charges on the indictment. I have determined an appropriate length of imprisonment for each charge, taking the applicable sentencing considerations into account and designated the highest term as the base sentence and then I have determined the extent to which there should be any cumulation regarding each count and I finally stood back and considered in light of totality what an appropriate sentence ought to be.
Formulation of sentence
105In formulating an appropriate sentence in your case, I have had regard to current sentencing practices, as one of the many sentencing factors I must have regard to. Neither your Counsel nor the Prosecution Counsel referred me to comparable cases, but I have nonetheless had regard to decisions of this Court and our Court of Appeal in order to give appropriate weight to current sentencing practices.[35]
[35]DPP v Hardin (a pseudonym) [2018] VCC 1834; Grantley [2018] 272 A Crim R 340; DPP (Vic) v Wilson (a pseudonym) [2018] VSCA 263; Tewksbury [2018] A Crim R 205; DPP v Shearer (a pseudonym) [2019] VSCA 47.
106While sentences of other courts are not binding precedents but are merely historical statements of what has happened in the past,[36] and current sentencing practices represent just one relevant sentencing factor to be considered, clearly, sentences for the crime of incest, particularly in recent years, have involved significant sentences of imprisonment of years’ duration.
[36]DPP v Dalgliesh (a pseudonym) [2017] HCA 41, [83].
107In formulating an appropriate sentence in your case, I have had regard to only the purposes for which a sentence must be imposed. Previous sentencing decisions have made clear the importance of general deterrence and protection of the community in relation to sexual offences against children.[37] I am satisfied in the circumstances of your case, that the need for specific deterrence and the need for community protection, is decreased. There is also a need for any sentence to facilitate your rehabilitation as appropriate. Ultimately, however, your serious offending must be denounced on behalf of the community, and you must be justly punished for your crimes.
[37]Tewksbury [2018] A Crim R 205, [82].
108Charges occur within the same episode and reflect different acts of violation of your victim. There will be a significant degree (but not full) concurrency on the sentences imposed on those counts.
109Further, given that your offending occurred years apart, in somewhat different circumstances, and given there is a statutory presumption of cumulation once considering Charge 3,[38] there is an obvious need for a degree of cumulation to be imposed on the sentence in the last incident, subject to the overriding principle of totality.
[38]Section 6E of the Sentencing Act 1991 – to be cumulative unless otherwise ordered.
110Finally, in fixing an appropriate sentence and allowing for a parole eligibility component, I have had regard to the principle of parsimony — that is, the requirement not to impose a sentence which is more severe than that which is necessary to achieve the purposes for which the sentence is imposed.
111The purpose of parole is to provide for mitigation of punishment in favour of rehabilitation, through conditional release when appropriate. A non-parole period is the minimum time that I determine justice requires you must serve, having regard to all of the circumstances.
112Due to the mitigatory factors in your case, I have attempted to give you a meaningful parole period. Accordingly, the non-parole period — that is, the period of imprisonment to be served before which you become eligible for parole — will appropriately take into account of the mitigatory factors in this case, and to facilitate your eventual reintegration into the community, and ultimate rehabilitation.
SENTENCE TO BE IMPOSED
113I come now, Mr Schwartz to the portion of my sentencing remarks where I do pass sentence on you. There is no alternative but to impose a sentence of imprisonment of some length, to be immediately served. You are sentenced as follows.
114On Charge 1, incest, you are convicted and sentenced to five years and six months’ imprisonment. That is the base sentence.
115On Charge 2, indecent act with a child under 16, you are sentenced to three years’ imprisonment.
116On Charge 3, indecent act with a which under 16, you are sentenced to 18 months’ imprisonment.
117The five-year six-month sentence imposed on Charge 1 is the base sentence.
118I cumulate 12 months on the sentence imposed on Charge 2 and eight months on the sentence imposed on Charge 3 on the base and each other.
119This brings about a total effective sentence of seven years and two months’ imprisonment.
120I declare that you serve four years and nine months before being eligible for parole.
PSD
121Pursuant to s 18 of the Sentencing Act1991, I declare a period of 34 days have been served by way of pre-sentence detention, and I order that this period be administratively deducted from your sentence.
Serious offender
122I note that you have been sentenced as a serious sexual offender on Charge 3 and, likewise, that fact will be entered into the records of the Court.
Section 6AAA
123Pursuant to s 6AAA of the Sentencing Act, but for your plea of guilty, I would have imposed a total effective sentence of nine years and three months with a non‑parole period of seven years.
Sex Offenders Registration Act (SORA)
124Charge 1 on the Indictment is a Class 1 offence pursuant to Schedule 1 to the Sex Offenders Registration Act 2004 (the Act).
125Charges 2 and 3 on the Indictment are Class 2 offences pursuant to Schedule 2 to the Act.
126You are to be declared a registrable offender under the Sex Offenders Registration Act and must comply with the reporting obligations of the Act.
127The duration under s 34(1)(c)(ii) of the Act of your reporting obligations is for life.
128Any matters arising?
129MS BARNDEN: No, Your Honour.
130HIS HONOUR: Ms Randazzo?
131MS RANDAZZO: No, Your Honour.
132HIS HONOUR: Are we able to give Ms Randazzo some privacy to discuss the outcome of the case with her client?
133MS RANDAZZO: Thank you, Your Honour, for that.
134ASSOCIATE: Yes, Your Honour.
135HIS HONOUR: Thank you. Thank you, Counsel.
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