Director of Public Prosecutions v Smith
[2020] VCC 656
•21 May 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-02263
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KEITH RONALD SMITH |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 May 2020 | |
DATE OF SENTENCE: | 21 May 2020 | |
CASE MAY BE CITED AS: | DPP v Smith | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 656 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Eight charges of Indecent Assault Upon a Male Person, one charge of Buggery – Historical Sex Offences committed between 1959 and 1979 – Offender charged following investigation by Baptist Church in 2017 into complaints against him – evidence of true remorse since offending – No further offending for over 40 years.
Legislation Cited: Sentencing Act 1991; Crimes Act 1958; Sex Offender Registration Act 2004
Sentence: Total Effective Sentence of 6 years and 2 months’ imprisonment, with a non-parole period of 2 years. s6AAA declaration: 9 years and 6 months’ imprisonment with a non-parole period 6 years and 6 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr B Sonnet | Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr J Hannebery QC with Mr L McPhie | Hutchinson Legal |
HER HONOUR:
1 Keith Ronald Smith, you have pleaded guilty to one charge of indecent assault upon a male contrary to s68(3) of the Crimes Act 1958 which carries a maximum penalty of 10 years’ imprisonment. You have also pleaded guilty to seven charges of indecent assault contrary to s68(3A) of the Crimes Act 1958 as amended by the Crimes Amendment Act 1967, each of which carries a maximum penalty of 5 years’ imprisonment. You have further pleaded guilty to one charge of buggery with a person under the age of 14 years contrary to s68(1) of the Crimes Act 1958, as in operation at the time of the offence in October 1977, which carries a maximum penalty of 20 years’ imprisonment.
2 Charge 1 occurred over 60 years ago between 1 July 1959 and 30 October 1959. It is a charge of indecent assault, which involves a course of conduct over approximately 4 months against a boy then aged between 14 and fifteen. He attended a Christian Endeavour Group (“CEG”) run by the Baptist Church in Mooroolbark for which you were a youth leader. At the relevant time you were dating your victim’s older sister and were aged between 18 and 19 years. After the group session concluded each Friday night, you would drive a number of the participants to their homes and your victim was always the last to be dropped off.
3 On one Friday night during winter in 1959, approximately three weeks after your victim began attending the CEG, you stopped off before dropping him home by parking your vehicle near the Croydon football oval. You unzipped your trousers and pulled out your penis and required your victim to put his hand on it and move it up and down until you ejaculated. You then asked your victim if he wanted you to masturbate him and he responded “yes” as he did not want to walk home. You then masturbated him but he did not ejaculate and you then drove him home. This conduct was repeated two or three weeks later, namely, you required your victim to masturbate you and then you masturbated him and on this occasion he did ejaculate which was the first occasion that he had ever done so.
4 You then repeated the same conduct on multiple Friday nights while driving your victim home. Apparently, a member of the CEG apparently lodged a complaint about you with the Baptist minister and your victim did not see you again at the CEG sessions after approximately the end of October 1959.
5 Your victim did not disclose your offending to anyone until well after he married. He ultimately confided in his wife long after the offending conduct, in late June 2017.
6 A consultant for the Baptist Union of Victoria professional standards received information regarding your having been removed as a youth leader at Mooroolbark Baptist Church for inappropriate behaviour. An investigation of the allegations began and you were interviewed in May 2018 and ultimately charged on 22 March 2019.
7 As a course of conduct charge, the gravity of the offending is considerably greater than if there were one isolated act of offending and the penalty should reflect the overall gravity comprising the multiple separate acts of offending.
8 Your offending on Charges 2 to 9 occurred between 1 March 1976 and 30 June 1979. It involved a different victim from Charge 1 and occurred in the context of you being a youth leader at the Lilydale Baptist Church. Your victim was a boy who attended the youth group at that church and was aged between 12 and 15 years at the time of your offending. You were aged between 35 and 39 years.
9 At the time of offending against your second victim, you were involved in selling spare parts in the motorcycle industry. You also had a brand new white Volvo sedan. Your young victim was interested in cars and you tuned into this fact. You began to offer your young victim a lift home from the youth group in Lilydale to his home, which was some 18 kilometres away. Your work involved you travelling around to sell motorbike parts and you invited your young victim to accompany you on such trips during the school holidays in 1976, to which his parents agreed. Your victim was 12 years of age when you committed the first offence against him.
10 Charge 2 occurred while you and your victim were sharing a room at a motel at St Arnaud which had two single beds and a bathroom. Your victim was on his bed and you came and sat on it and put your arms around him and began cuddling him and kissing his head and stroking his back and hair. You then placed one of your hands on your victim’s groin area over his clothing.
11 The following night at another motel near Horsham, you again began stroking your victim’s head and back, entered the bathroom while he was having a shower to ask if he needed assistance, which he declined, and later again gave him a cuddle, but no indecent touching occurred.
12 The night after that, the two of you were in a motel in Hamilton. While your victim was having a shower you came into the bathroom with your erect penis protruding from the front of your pyjama shorts and said something like, “I'm glad to see you in the shower”. Later, your victim, whilst wearing his pyjamas, was sitting on his bed. You were naked and gave him compliments about how handsome and intelligent and mature he was and sat next to him on his bed and began stroking his head and back. You then reached into the front of his pyjama pants and put your hand on his penis and moved your fingers up and down causing your victim’s penis to become erect, which was the first time that he had experienced an erection, and your victim noticed that his penis was leaking some type of fluid which made him feel confused and embarrassed. You said something like, “Sorry about that” and told your victim not to tell anybody as the Church would not like it and you would not be able to run the youth group. This conduct comprises Charge 3. Your victim then hopped into his own bed and you, who were naked, got in and lay behind him and your victim could feel your erect penis against his back. You told your victim that he should not tell his parents as they would not let him come on a trip again.
13 Charge 4 comprised an incident which occurred towards the end of 1976 in circumstances where, after a Sunday church service, you drove your victim back to your home in Mooroolbark to watch sport on television. You asked your victim to lie down and proceeded to undo his pants and stroked his penis up and down until your victim ejaculated. You cleaned up your victim and said, “Sorry about that” before driving him home.
14 In the school holidays of April/May 1977, you again took your victim on a work trip, part of which took you into New South Wales. Upon returning to Victoria you booked into a motel and shared a room. Your victim was watching television. You went into the bathroom and emerged, naked from the waist down with an erect penis. You asked your victim to touch your penis and kiss the end of it. When he put his mouth near it, you put one of your hands on the back of his head and pushed his head down so that his mouth went over your penis. You then moved his head up and down causing him to suck on it. (This conduct comprises Charge 5.) You then removed your hand from your victim’s head and went into the bathroom and came back some time later stating that you were sorry.
15 On 2 October 1977, you drove your victim, then aged 13 years, back to your house in Mooroolbark in order to watch the Bathurst 1000 race. Whilst watching the race, you touched and poked and tickled him and touched him on his clothing over the area of his penis. After dinner, you drove him home but, shortly before reaching his house, you told your victim to take his penis out of his pants and you then used your left hand to masturbate his penis until he ejaculated (Charge 6).
16 Subsequent to the offending on Charge 6, on another night in October 1977, you hosted a youth group at your home. Your victim was the last youth remaining and was watching television upstairs. You entered and shut the door and told him to take off his pants and underwear and then knelt down in front of him and put your mouth over his penis and sucked on his penis until it became erect (Charge 7). Whilst engaging in this conduct, you were using your hands to touch your victim all over his body.
17 Immediately after the conduct comprising Charge 7, you pulled down your pants and underpants and exposed your erect penis and told your victim to kneel on the couch with his bottom facing you. You said something like, “I'm gonna fuck you as, after all, no one would think you were telling the truth.” You then started kissing your victim’s head and your victim could feel you putting some lotion between his buttocks and on his anus. You then pushed your erect penis into your victim’s anus, which he stated really hurt (Charge 8). You then removed your penis and ran to the toilet and later drove your victim home.
18 During 1978 you continued to sexually assault your victim either at your home or in your motor vehicle. There are no charged acts relating to these other occasions.
19 The final charge, Charge 9, occurred in June 1979 when your victim was aged 15 years and you were aged 38 years. Your victim was at your house in Mooroolbark and you were discussing a party which the youth group had attended at Wandin some two or three weeks earlier. You began to rub your victim’s buttocks and penis on top of his clothing and later masturbated your victim’s penis until he ejaculated. You told your victim that he could not tell anyone about the conduct in which he had engaged with you.
20 You are presently aged 79 years, having been born on 2 November 1940. You come before the Court with no prior or subsequent convictions.
21 During a plea on your behalf by Mr Hannebery of Senior Counsel, a report of a psychological assessment conducted by Mr Patrick Newton, clinical and forensic psychologist, dated 21 April 2020, was tendered as Exhibit “1”.
22 Mr Newton took a history that you had left Box Hill Technical School after completing the equivalent of Year 9, as you apparently did not like school, although you had not experienced any significant academic, behavioural, disciplinary or social problems. You did not undergo any post-school education or vocational training and worked in your family’s orchard until it was sold and then in another orchard until the mid-1970s. You then became a co-investor in a business selling motorcycle parts for which you provided most of the capital and worked as a sales representative. Apparently the relationship with your co-investor broke down in about 1983 and you lost a significant amount of money in the business which was very stressful for you. You then operated a company selling accessories for use in video recording from 1983 until you retired in 2007. Since retiring, you have maintained a charitable program operated by your local Church but were stood down from all leadership positions when you were charged with these offences, albeit that you continued to participate in the activities of the Church.
23 Mr Newton stated that you reported no experience of sexual abuse as a young person. You reported that, by your early teens, you realised that you were sexually attracted to other males, but this caused you anxiety as you had been reared in a family of devout Baptists, and homosexuality conflicts with your understanding of Biblical teaching regarding acceptable human sexual behaviour. You had some sexual experiences in your teens, which did not involve intercourse, and later had several short term liaisons with other men, however you described being overcome with guilt following such encounters. You have never engaged in a romantic relationship and never cohabitated with a partner.
24 You reported to Mr Newton that your offending against your first victim, which had occurred when you were 18 years old, had arisen in the context of what you had considered to be mutual sexual exploration. Your offending against your second victim had occurred during a period of elevated stress relating to your motorcycle business and you claimed that your offending had been motivated by a desire for affection and sexual gratification.
25 Mr Newton assessed you as currently suffering symptoms of anxiety and depression which are reactive to having been charged with these offences and the Court hearing. However, he did not consider that you are suffering typical symptoms associated with anxiety-related disorders. There is no indication that you suffer from clinically significant depressive mood disturbance. Accordingly, he did not consider your symptoms sufficient to warrant a diagnosis of a mental disorder.
26 Mr Newton found it difficult to assess your mental state at the time of offending, given that it is so long ago, but thought it unlikely that your reported symptoms of personal stress relating to your business or your sense of loneliness or interpersonal neediness would meet the criteria for a mental disorder at that time because you were able to carry out your usual occupation efficiently, participate in your usual social, charitable and recreational activities, did not require medical, psychological or even informal counselling and your symptoms remitted fully without intervention after the stressors subsided. Accordingly, he did not consider that there was sufficient evidence to conclude that you were labouring under the effects of any mental disorder at the time of your offending conduct.
27 Mr Newton noted that you had difficulty accepting your sexual preference for other males and this remained a source of shame and embarrassment so that you had been reluctant to seek support and intimacy with others. He noted that you were not accustomed to discussing your feelings and tended to downplay the intensity of your emotional reactions. On applying the Static‑99R and RSVP risk assessment tools, Mr Newton noted that your offending conduct showed several concerning aspects, namely, chronicity, escalation and the use of a position of authority to ensure your victims’ compliance. In addition, he noted issues relating to the lack of intimate relationships and past distorted understanding of the boundaries between affection and sexual behaviour, a lack of emotional awareness and difficulties managing stress during the 1970s. He considered that these factors had led to your offending which was chronic and which took advantage of the trust reposed in you as a youth leader. However, he noted that most of the these factors have now resolved and that there has been no recent offending. Mr Newton considered that the absence of an intimate partner was not causing you distress and, thus, was not assessed as elevating your risk of recidivism.
28 Overall, Mr Newton considered that it is not appropriate to diagnose you as suffering from a paraphilic disorder at this time and that you are at low risk of recidivism, taking into account that a period of more than 40 years has elapsed since your last offending, during which you had been at liberty in the community and had occupied positions of authority within your Church and business and had unfettered access to other potential victims. Moreover, he did not consider that you have any issues concerning your mental health which would impose an impediment to treatment or effective management.
29 Also in your favour, Mr Newton noted that you endorse a prosocial moral code derived from your Christian faith and moral reasoning. Further, he considered that you are now clear that you had behaved inappropriately and have accepted full responsibility for your actions. He stated that you are able to discuss the sexual development of young men and to show your awareness of the negative consequences which accrue from sexual contacts between adults and underage people. You are able to demonstrate a realistic appreciation of the potential impacts of your offending which had formed the basis for empathy with your victims and for your remorse. You expressed extreme sorrow for your offending and acknowledged the real issues that you had caused for your victims. In particular, you stated that you sincerely hope that your second victim might have peace and healing in his life.
30 Your counsel told the Court that your partner in the motorcycle spare parts business had caused the demise of that business through his gambling addiction. You were left with a debt of approximately $80,000, but you managed with difficulty to repay this from your own funds. Thereafter, you worked in an orchard for a time and from 1983 onwards successfully operated a business selling accessories for video-recording up until you retired in 2007. Since then, you had spent a considerable amount of your time tending some 600 rose bushes in your garden. You also, set up a community kitchen under the auspices of the Mooroolbark Baptist Community. For the last 13 years you coordinated a team of volunteers who would purchase, cook and serve meals to needy people in the community. Your only sibling, Miss Elaine Smith, provided a reference dated 7 May 2020 confirming this work for which you were recognised and given a local community award by Yarra Ranges Council in 2011. In her reference (Exhibit “2”), she notes that you have often cared for needy people and, in the 1980s, were part of a group which visited prisoners. In addition, you took on ongoing care for a former prisoner and a number of other people who have had significant problems. She stated that you had cared for a neighbour who suffered cancer, who died earlier this year. This care took place on an almost daily basis by you attending to his shopping, medical appointments, rehabilitation treatment and other matters.
31 As I have stated, you are now aged 79 years. You will turn 80 years of age in November this year. You are apparently in reasonably good physical and psychological health, although your counsel stated that you require prescription medication for elevated blood pressure and also elevated cholesterol levels, as well as some cream for dermatitis. Apart from these factors, your health is good. However, your advanced age is a significant sentencing consideration. The fact that an offender is elderly does not mean that an inappropriately low sentence should be imposed, but I accept that serving a term of imprisonment, particularly for the first time, is likely to be more burdensome for you because of your age. As one reaches the final stage of life, any number of health issues may arise. There can be no certainty about life expectancy once one reaches almost 80 years of age and it is a real possibility that you may spend a substantial proportion of the remainder of your life in custody. Further, I accept that you are of an age where you are more vulnerable should you contract COVID‑19 during the current pandemic and this is an understandable cause for anxiety by you. Although the virus has been well contained within the prison population, the future is unknown. Currently, because of the pandemic, your first 14 days in custody will be difficult because you will be held in isolation. Also, at the present time, no prisoners are permitted visitors, which is likely to be very difficult for you at your age. I also accept and take into account Mr Newton’s opinion that your “age, social background, sexuality, naivety to the prison environment and its mores, and the nature of the offences…would all combine to render [you] a relatively vulnerable prisoner.”[1]
[1]Exhibit “1”, para 55
32 Mr Smith, you come before the Court with no prior convictions. However, in cases of sexual offending like yours, where you have effectively used your good character as a youth leader in order to be able to obtain the trust of your victims and their parents, it is inappropriate to call in aid that good character as a mitigating factor. It is now well known that the harm to children who are sexually abused can be very severe and long term. You should be in no doubt as to the seriousness of this offending.
33 Although there is no Victim Impact Statement from your first victim, it is plain from his statement to police that you were well respected and people looked up to you as a youth leader. You had your driving licence and were entrusted with dropping the young boys home from the youth group. In his statement to police, your first victim stated that what was happening between you and him was something he had never before experienced. He knew it was not right, but he did not know what to do about it, as both your family and his family were devout members of the Church. This type of confusion by children in adolescence when they are exposed to sexual matters which they do not have the maturity to fully comprehend is very common. It is telling that for a very long time afterwards your first victim did not tell anyone about it. The law understands and acknowledges that enduring harm.
34 A Victim Impact Statement has been provided by your second victim (Exhibit “B”). It is a heartrending document which describes how your second victim has struggled with sexual issues for most of his life. He describes having been brought up in a very religious family and, the fact that he was offended against in a church context, continues to trouble him. He left the Church and this greatly disappointed his father. He felt ashamed of having to hide the truth of the offending and it impacted adversely upon his own sense of sexuality. He describes excessive alcohol use and depression and a great deal of counselling and medication which he has required. He said he felt dirty and used and lonely and, even at school, dissociated himself from sports and felt uncomfortable around nude males in change rooms. Once he married and had sons, he denied them the opportunity to attend scout groups and youth groups and school camps because of your offending against him. It is plain from the Victim Impact Statement that your dreadful breach of trust and offending conduct continues to impact adversely upon your second victim even though he is now 56 years of age. In sentencing you, I take that impact into account.
35 Although Charge 1 is a course of conduct charge which spans some four months, I take into account that the age disparity between yourself and your first victim was only four years and that you were only 18 years old when the offending began. You did abuse your position of trust as a youth leader and were obviously more sexually aware than your victim. Generally, denunciation of such offending and emphasis upon general deterrence would be the primary sentencing objectives, but given your young age at the time, rehabilitation would also have been a very important factor in sentencing, particularly for a first offender like yourself. I am obliged to sentence in accordance with current sentencing practice, but the principal of equal justice means that I should also take into account sentencing practices at the time of the offending in so far as they can be ascertained. The latter is a difficult task decades after the offending. Had you been charged with the offending on Charge 1 and come before a court reasonably promptly in the early 1960s, I consider it unlikely that you would have been sentenced to a term of imprisonment in an adult prison. Of course, any alternative sentence that may have been available to you as a youthful offender at that stage is no longer available to an elderly man as you now are. It is also relevant that the maximum penalty for that offence was 10 years’ imprisonment at the time of offending. In all the circumstances, I find that the only appropriate sentence on Charge 1 is a term of imprisonment. However, I have been assisted by the concession made very fairly by Mr Sonnet, on behalf of the prosecution, that in all the circumstances relating to Charge 1, the sentence imposed on that Charge should be a significantly reduced one and there should be only very modest cumulation of the sentence imposed on Charge 1 upon the sentences imposed on Charges 2 to 9.
36 The offending on Charges 2 to 9 is clearly of a very serious nature. It took place over a period in excess of three years in circumstances where you groomed your young victim, who was aged between 12 and 15 years and you were 24 years older than him. The age and power disparity were very significantly greater than your offending on Charge 1. You preyed upon his interest in cars and motorcycles and used your good reputation as a youth leader to obtain the trust of his parents so that they permitted you to take your victim with you on work trips around Victoria. You thereby ensured that you had your victim to yourself and, as your victim told police in his statement you “spoiled him rotten”. He took delight in being taken out for meals by you where he could eat steak, which he would not have been served at home, and also being afforded the opportunity to watch television in motel rooms, which was a novelty for him given that there was no television set at his own home. He was only 12 years old when you first offended against him and the offending continued for some 3 years, which were vital formative years when your victim would have been coming to terms with his own psycho-sexual development.
37 Your breach of trust was very significant and also hypocritical given that you were the youth leader of his church group charged with fostering moral, Christian conduct in your young charges. It is also an aggravating feature of your conduct that, on a number of occasions over the years, you cautioned your victim not to tell anybody about your conduct. It is particularly morally repugnant that prior to performing the most serious offending, Charge 8, buggery, you told your victim something to the effect of “I'm going to fuck you as, after all, no one would think you were telling the truth.” I have already referred to the long term adverse impact upon your second victim. This is entirely understandable given the multiple successive acts of offending against him over a period of more than 3 years, which included three penetrative offences on Charges 5, 7 and 8.
38 In sentencing for these offences, the Court must denounce your conduct and place emphasis upon general deterrence so that others who might be minded to take advantage of young children by sexually preying upon them, long before they have the maturity to know and understand what is being done to them, will realise that they will be appropriately punished. In current times, the total effective sentence may seem lenient, however, it must be borne in mind that the maximum penalty for the offences of indecently assaulting a male under the age of 16 at the time you committed them against your second victim was only 5 years’ imprisonment. It is now very significantly higher than that.
39 As I intend to impose a sentence of imprisonment on Charge 1 and Charge 2, you fall to be sentenced on Charges 3 to 9, both inclusive, as a serious sex offender. This means that, pursuant to s6D of the Sentencing Act, the protection of the community is the principal sentencing purpose, although the prosecution does not submit (and appropriately so in my view) that it is necessary for the Court to impose a disproportionate sentence in order to achieve such purpose.
40 By reason of you being sentenced as a serious sexual offender, s6E of the Sentencing Act 1991 carries a presumption of cumulation, so that the scope for applying the principle of totality is more limited than cases that do not fall within that Section. In imposing the sentences which I intend to impose on Charges 3 to 9, I am mindful of the importance of not undermining the legislative policy behind s16(3A), even though tension between that policy and the principle of totality is difficult to reconcile. However, I have endeavoured to arrive at an overall sentence which is a just one in all of the circumstances.
41 In the plea on your behalf, Mr Hannebery made comprehensive submissions which were not contested by Mr Sonnet for the prosecution. Obviously there has been significant delay between the commission of the offences and you being charged with them on 22 March 2019. The law recognises that because of the confusing and deleterious impact of sexual offending on children, it is not uncommon for there to be substantial delay and, indeed, some victims never make a complaint at all. So the delay the between offending and being charged, per se, is not a mitigatory factor. However, it is of significance that, after being charged in March 2019, the matter had resolved into a plea by 13 November 2019 prior to any committal proceeding. The prosecution concedes that this represents early pleas of guilty. Neither your two victims, or any other witnesses, were required to be called to give evidence or be cross-examined. You have shown a preparedness to facilitate the course of justice and Mr Sonnet fairly acknowledged on behalf of the prosecution that, in this current climate of the pandemic of COVID‑19 during which many matters are being delayed and adjourned, your willingness to not resile from your pleas of guilty and go ahead with your plea hearing should be regarded as having very significant utilitarian value. It is also acknowledged by the prosecution, and I accept, that you have indicated remorse for your behaviour. This is evidenced by your early pleas of guilty, particularly given the substantial number of decades that have passed since your offending. It is also evidenced by you acknowledging to Mr Newton the damage that can result from sexual offending like yours and your expression of remorse and regret for your behaviour and evincing empathy with your two victims. In addition, the Court was told that you paid some monetary compensation to your second victim, albeit that the amount was kept confidential and was not revealed to the Court. In all of the circumstances, I consider that you should be given a high discount on the sentences which otherwise would have been imposed.
42 The other very significant matter emphasised by Mr Hannebery is the fact that it is now almost 41 years since you committed your last offence in June 1979. Hence, the delay between then and your date of sentence is of importance in indicating that you have rehabilitated yourself. I have already referred to the blameless life you have lived since, and the evidence of significant charitable work you have performed. Indeed, Mr Sonnet conceded on behalf of the prosecution that you have rehabilitated yourself “absolutely” over those decades and accepted, as do I, that your risk of recidivism is low as assessed by Mr Newton in his report. Mr Sonnet conceded that, in the circumstances, that there is very little need for emphasis upon specific deterrence in sentencing you. I accept that this is so. I note that you have a close and supportive relationship with your sister and near neighbours and that those are also positive factors in assessing the issue of rehabilitation. I share Mr Newton’s view that, should any offence-specific treatment be deemed necessary, it would be preferable for it to be individual rather than group-based.
43 It was also conceded by Mr Sonnet that, given your early and remorseful pleas of guilty, rehabilitation, low risk of recidivism and advanced age, this is the type of case where the fixing of a relatively long parole period, disproportionate to the head sentence, would not be an error.
44 Mr Smith, would you please stand?
45 On Charge 1, you are convicted and sentenced to a term of imprisonment of 12 months.
46 On Charge 2, you are convicted and sentenced to a term of imprisonment of 3 months.
47 On Charge 3, you are convicted and sentenced to a term of imprisonment of 5 months.
48 On Charge 4, you are convicted and sentenced to a term of imprisonment of 9 months.
49 On Charge 5, you are convicted and sentenced to a term of imprisonment of 2 years.
50 On Charge 6, you are convicted and sentenced to a term of imprisonment of 9 months.
51 On Charge 7, you are convicted and sentenced to a term of imprisonment of 2 years.
52 On Charge 8, you are convicted and sentenced to a term of imprisonment of 4 years.
53 On Charge 9, you are convicted and sentenced to a term of imprisonment of 9 months.
54 The base sentence is that of 4 years imposed on Charge 8. I direct that 2 months of the sentence on Charge 1, 1 month of the sentence on Charge 2, 1 month of the sentence on Charge 3, 2 months of the sentence on Charge 4, 8 months of the sentence on Charge 5, 2 months of the sentence on Charge 6, 8 months of the sentence on Charge 7, and 2 months of the sentence on Charge 9 be served cumulatively upon the sentence imposed on Charge 8 and upon each other. The total effective sentence is thus 6 years and 2 months’ imprisonment.
55 I direct that you serve a period of 2 years before becoming eligible for parole.
56 As I have stated, in sentencing you on Charges 3 to 9, both inclusive, you have been sentenced as a serious sex offender and I cause that factor to be noted in the records of the Court.
57 Charge 8, buggery, is a Class 1 offence pursuant to the provisions of the Sex Offender Registration Act 2004. Indecent assault upon a male contrary to s68(3) of the Crimes Act 1958 is a Class 2 offence pursuant to the provisions of that Act. Indecent assault upon a male contrary to s68(3A) of the Crimes Act 1958 (as amended) is also a Class 2 offence pursuant to the provisions of the Sex Offender Registration Act 2004. It thus becomes mandatory for you to be registered as a sexual offender under that Act and you must comply with the reporting obligations of that legislation for the remainder of your life pursuant to s34(1)(c)(ii). I will have my Associate provide to you a document setting out those obligations and I ask that you acknowledge receipt of it by your signature, please, Mr Smith.
58 Pursuant to s464ZF(2) of the Crimes Act 1958, I order that you undergo a forensic procedure for the taking of a saliva sample in accordance with Subdivision 30A Part 3 of the Act, until a sample of sufficient standard is obtained for placement on the database. I consider that such order is warranted by reason of the seriousness of the circumstances of your offending.
59 Mr Smith, this involves you providing a sample of saliva from inside your cheek by using a cotton bud. You need to understand that if you do not cooperate with the police in taking such a sample, then they are entitled to use reasonable force to ensure that it is obtained.
60 Pursuant to s6AAA, I state that, had it not been for your pleas of guilty, the Total Effective Sentence imposed would have been 9½ years, with a non-parole period of 6½ years.
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