Director of Public Prosecutions v Smith (a pseudonym)
[2020] VCC 1666
•9 October 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| SEXUAL OFFENCES LIST |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOHN SMITH (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 7 September 2020 | |
DATE OF SENTENCE: | 9 October 2020 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Smith (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1666 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Re Indictment No. J11446823.3 – sentence – where jury found offender guilty of one charge of indecent act with a child under 16 years – a course of conduct charge
Re Indictment No. J11446823.4A – sentence – where jury found offender guilty of one charge of sexual penetration of a child under 16 years
Re Indictment No. J11446823.4B – sentence – where offender pleaded guilty to two charges of indecent assault, with one of those charges being a rolled-up count
Legislation Cited: Crimes Act 1958 (as amended by the Crimes (Sexual Offences) Act 1991), s47(1), s37A; Crimes Act 1958 (as amended by the Crimes (Amendment) Act 2000, s45(1); Crimes Act 1958 (as amended by the Crimes (Rape) Act 1991), s39(1); Criminal Procedure Act 2009, cl 4A; Sentencing Act 1991, s5(2F), s9, Part 2A, s6D, s6E, s6F; Sex Offenders Registration Act 2004, s34(1)(c)
Cases Cited:McCray (a pseudonym] v R [2017] VSCA 340; Cheung v R (2001) 209 CLR 1; R v Jones [2004] VSCA 68; Brown (aka Davis) v R [2020] VSCA 60; R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269; Lyon (a Pseudonym) v R [2019] VSCA 251; Schulz v R [2019] VSCA 179; Osborne v R [2018] VSCA 160; Tones v R [2017] VSCA 118; Ashley v R [2016] VSCA 246; Soo v R [2014] VSCA 304; McPherson v R [2014] VSCA 59; Director of Public Prosecutions v Bales [2015] VSCA 261; Phillips v R [2012] VSCA 140; Thomas v R [2019] VSCA 223; R v Nikodjevic [2004] VSCA 222; R v Merrett, Piggott and Ferrari (2007) 14 VR 392; Mill v R (1988) 166 CLR 59; R v Miceli [1998] 4 VR 588; R v Idolo (unreported, VSCA, 21 April 1998); Pang v R [2018] VSCA 5
Sentence: Total effective sentence of five years and two months’ imprisonment with a non-parole period of three years and five months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C Duckett | Solicitor for the Office of Public Prosecutions |
| For the Offender | Dr M Fitzgerald | Doogue & George |
HIS HONOUR:
Introduction
1 John Smith[1]:
(a)on 26 February 2020, a jury delivered a verdict of guilty in respect of one historical sex charge on Indictment No. J11446823.3 (“the first trial”);
(b)on 11 March 2020, a jury delivered a verdict of guilty in respect of one historical sex charge on Indictment No. J11446823.4A (“the second trial”);
(c)on 7 August 2020, you pleaded guilty to two further historical sex charges on Indictment No. J11446823.4B.
[1] A pseudonym
2 A plea hearing was held on 7 September 2020 in respect to the above offending. These reasons set out the sentence of the Court for such offending and also the reasons for such sentence.
3 Each of the victims of your sexual offending – what the law refers to as complainants – were female members of your extended family. In this respect, your wife had various female siblings who had children and, in some cases, grandchildren. Each of the complainants was either your niece or great niece.
The circumstances of the offending
4 I refer to Indictment No. J11446823.3 – that is the first trial – wherein it was pleaded against you three charges alleging an indecent act with a child under 16 years, contrary to s47(1) of the Crimes Act 1958 (as amended by the Crimes (Sexual Offences) Act 1991). Each offence carried a maximum penalty of 10 years’ imprisonment.
5 You pleaded not guilty to each of the offences before a jury of 12. You stood your trial and the jury found you not guilty in relation to two of the charges (one of which involved the same complainant as Charge 3), but found you unanimously guilty in relation to Charge 3, which pleaded:
“… at Greensborough and Bundoora in Victoria between the 5th day of April 2004 and 4th day of April 2006 wilfully committed an indecent act with or in the presence of … [Marie Duggan[2]], a child under the age of 16 years to whom … [you] were not married.”
[2] A pseudonym
6 In particular, it was alleged that you massaged Marie Duggan’s breasts, vagina and buttocks.
7 Charge 3 was also pleaded as a “course of conduct charge”. A course of conduct charge is a single charge for a relevant single offence, which incorporates multiple incidents of the same offence committed on more than one occasion over a specified period (see Criminal Procedure Act 2009, Schedule 1, clauses 4A(1), (2) and (6)). This form of charge was introduced to deal with repeated and systematic sexual offending. As a rule of criminal procedure, it is a matter of pleading a charge, rather than a discrete offence (see generally McCray (a pseudonym) v R [2017] VSCA 340 at paragraphs [17]-[18]).
8 The following parts of clause 4A are also relevant:
(8)The prosecution must prove beyond reasonable doubt that the incidents of an offence committed by the accused, taken together, amount to a course of conduct having regard to their time, place or purpose of commission, and any other relevant matter;
(9)However, to prove a course of conduct offence it is not necessary to prove an incident of the offence with the same degree of specificity as to date, time, place, circumstance or occasion, as would be required if the accused were charged with an offence constituted only by that incident;
(10)Without limiting subclause (9), it is not necessary to prove:
(a)any particular number of incidents of the offence, or the dates, times, circumstances or occasions of the incidents; or
(b)that there were distinctive features differentiating any of the incidents; or
(c)the general circumstances of any particular incident.
9 I also refer to the Sentencing Act 1991, which makes specific provisions for sentencing an offender on a course of conduct charge. Section 5(2F) of that Act relevantly provides as follows:
“In sentencing an offender for the incidents of the commission of an offence included in a course of conduct charge a court —
(a) must impose a sentence that reflects the totality of the offending that constitutes the course of conduct; and
(b) must not impose a sentence that exceeds the maximum penalty prescribed for the offence if charged as a single offence;
Note
If a jury finds a person guilty of a course of conduct charge, in making finding of facts relevant to sentencing the sentencing judge determines the course of conduct in which the person engaged and by reference to which the person will be sentenced.”
10 The complainant Marie Duggan gave evidence that her mother was the sister of your wife and, accordingly, she referred to you as an uncle. Ms Duggan described how she had four half-siblings from her mother’s first marriage and that she – that is Ms Duggan – and her sister were the children of her mother’s second marriage. By the time of the offending, Ms Duggan’s mother was separated from her second husband, which led to Ms Duggan spending time at her father’s residence and time at her mother’s residence.
11 Marie described that her relationship with you when growing up involved you being a very big part of family life and very loved within the family. She describes you as someone who helped out with things, such as fixing computers and other things at her house.
12 Approximately from when Marie Duggan was 13 up to when she was 14 or 15, her mother, who worked at a local RSL Club, worked back on Thursday nights. On those nights, Ms Duggan and her sister would be at their house taking care of themselves.
13 Ms Duggan described that on many such nights you would come around when her mother was at work and Ms Duggan believes this was most weeks. She gave evidence that the offending occurred from when she was about 13 up to when she was 14 or 15. Over that period, your aged ranged from 52 to 54 years old.
14 Marie Duggan described that from a very young age you would give her light tickles on her back, which she enjoyed, but as she got older the tickles turned into massages. You would massage her shoulders or back and then she would feel your hands touching her breasts, sometimes they would go down the back of her pants and sometimes you would offer to give her leg massages when she could feel your fingers rubbing her vagina at the time.
15 Marie Duggan described that if you were putting her to bed on a Thursday night, you would come in for a long time to tickle and massage her back, and she would feel your hands on the side of her breasts.
16 Furthermore, Marie Duggan described that on family occasions you would disappear for hours to say goodnight to her and her sister and she would be massaged by you. Ms Duggan described that when she was in bed, you would lift up her pyjama top when she was laying on her stomach to allow back massages to occur. You used both hands to massage her back and shoulders and then moved down the sides of her breast and down to the top of her buttocks’ region.
17 You would slip your hands underneath and move your hands probably about halfway down the cheeks of her buttocks. Sometimes, on a Thursday night when Marie’s mother was working, you would come over and she would sit on a kitchen chair and you would massage her neck and shoulders, sometimes using baby oil, and you would touch the tops of her breasts when you were standing behind her and massaging her. She described that such massages went down to the nipple and she felt the sensation of her “boobs” sort of being lifted up. Such massages were skin on skin.
18 Marie Duggan also gave evidence that she recalls attending your place of work where she played computer games, and she would also be massaged by you, and on one particular occasion, Ms Duggan recalled that she was lying on her front at your offices and you have massaged her from the bottom of her legs up to “my bum area and if I was over on my front he would do the front of my legs and would again start at the bottom of my legs and move up towards my crutch”. She remembers you being very close to her vagina and could feel your fingers rubbing on it, albeit this is over at least underwear.
19 Marie Duggan gave evidence that the massages in the kitchen at her mother’s home were not every Thursday night, but frequently over that time.
20 I am bound by the principles set out in the High Court case Cheung v R (2001) 209 CLR 1 to interpret the facts in a way which is consistent with the jury’s verdict. I consider that the jury verdict is consistent with the account given by Marie Duggan. In this respect, the offending was reasonably frequent over the period from when she was approximately 13 to when she was 14 or 15. Although Ms Duggan gave evidence that she was massaged on the breasts, buttocks and in the vaginal area, the evidence given by her was that such massaging was predominantly in relation to the breasts, the buttocks to a lesser extent and, on her evidence, one clear example of massaging her in the vaginal area, in your office, where she recalled your fingers running over the underwear covering her vaginal area.
21 After the jury found you guilty in relation to Charge 3, bail was revoked and you were remanded in custody, where you have remained since that date.
22 I also refer to Indictment No. J11446823.4A – that is the second trial – which pleads that you:
“… at Bundoora in Victoria between the 8th day of December 2000 and 7th day of December 2002 took part in an act of sexual penetration with … [Danielle Steward[3]], a child under the age of 16 years, in that … [you] introduced … [your] finger into her vagina.”
[3] A pseudonym
23 You stood your trial and the jury unanimously found you guilty of that charge on 11 March 2020. Sexual penetration of a child under sixteen is contrary to s45(1) of the Crimes Act 1958 as amended by the Crimes (Amendment Act) 2000 and carries a maximum penalty of ten years’ imprisonment.
24 In her evidence, Danielle Steward described you as her mother’s uncle and that although you were effectively a great uncle, you were always referred to as “Uncle John”. Danielle Steward also described you as being around for family events, including Christmas events and birthdays, and throughout her early childhood she observed you at these types of functions.
25 Danielle Steward gave evidence that she was living with her family, consisting of her mother and five siblings. She gave evidence that her general impression of you prior to the offending was that you were a favourite uncle who was always energetic and playful.
26 Danielle Steward went on to describe an incident when she was about 10 or 11 and the family was staying at your house, brought about because the family had to move out of their premises. In particular, Ms Steward remembered sleeping at your house overnight. At that time, she and one of her sisters slept in a room where there were bunk beds and ultimately Ms Steward slept on the top bunk.
27 Danielle Steward gave evidence that she always wore flannelette pyjamas with a long-sleeved button-up shirt and pants. Furthermore, she was wearing underwear. She describes that she had fallen asleep, but that she was a light sleeper, and lying on her left side, which gave her a view of the entire room, although when the light was off and the doors closed there was no light in the room.
28 Danielle Steward gave evidence that she recalled lying on her left side and she became aware of hearing the door of the bedroom open and with the assistance of the hallway light saw you enter the bedroom.
29 She observed you to kneel down to the bottom bunk for a short time and then stood back up to the top bunk and then slid one of your hands under the blanket and pulled her pants down a little, about midway down to the thighs, and then put your hand into her underwear and started playing with her clitoris (an uncharged act).
30 Danielle Steward gave evidence that initially she did not know what to do and the only thing she could think of was to move her legs around to try and get you to stop.
31 Danielle Steward gave further evidence that momentarily you did stop and then put your hand back under her underwear and again played with her clitoris (an uncharged act).
32 Danielle Steward gave evidence that she continued to try and move around and ended up lying on her back, and ultimately you placed a finger into her vagina, moving your finger around inside her. Ms Steward described that you placed your finger “all the way” because she felt your knuckle hit the outside of her. When queried by the Court to clarify the knuckle, she described the knuckle to be the one adjoining the palm of the hand. She also described how there was pain and uncomfortableness, and although she was not certain for how long this continued, she thought perhaps a few minutes, but could not be precise.
33 When you were performing such act, Danielle Steward moved to try and get you to stop and eventually you did stop when she had her back facing you and you were facing the wall next to the bunk. After a little while you left the room.
34 As I have already stated, I am bound by the principles set out in the High Court case of Cheung v R (op cit). It is my responsibility to interpret the facts in a way which is consistent with the jury’s verdict. I consider that the jury verdict is consistent with the account given by Danielle Steward.
35 At the completion of your second trial, it was intended to commence your third trial on 22 June 2020 in relation to a further indictment pleading several further charges of historical sexual offending against members of your extended family. That trial date had to be vacated because of the advent and consequences of COVID-19. The matter was mentioned on 26 June 2020 and the Court was informed that there were ongoing discussions between the parties as to the resolution of that matter.
36 On 7 August 2020, the Court was advised that the proposed third trial had resolved. On that date, one charge was remitted to the Magistrates’ Court for hearing and the prosecutor laid over a further indictment, being J11446823.4B, which pleaded the following:
Charge 1 – that you at Macleod and Bundoora in Victoria between 1 January 2002 and 31 December 2004, assaulted Rose Aguirre[4] in indecent circumstances whilst being aware that Rose Aguirre was not consenting or might not be consenting.
Indecent assault is contrary to s39(1) of the Crimes Act 1958 as amended by the Crimes (Rape) Act 1991 and carries a maximum penalty of 10 years’ imprisonment.
The charge is referred to as a rolled-up charge. A rolled-up charge is a collection of identifiable charges bundled together in a single charge (see – R v Jones [2004] VSCA 68 at paragraphs [12]-[13]). Such an approach simplifies the sentencing court’s task and works to your benefit by allowing multiple instances of similar offending to be dealt with as a single charge rather than through numerous separate charges (See Jones (op cit) at paragraph [12]).
When sentencing on a rolled-up charge, the Court must consider all the circumstances of the offence and the offending, including if the offending was carried out over an extended period, victimised multiple persons and the totality of the harm described in the charge. While 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 (see s9(4A) of the Sentencing Act 1991).
Charge 2 – That you, in Cranbourne East in Victoria between 1 January 2004 and 31 December 2004, assaulted Rachael Steward[5] in indecent circumstances while being aware that Rachael Steward was not consenting or might not be consenting.
Indecent assault is contrary to s39(1) of the Crimes Act 1958 (as amended by the Crimes (Rape) Act 1991) and carries a maximum penalty of 10 years’ imprisonment.
[4] A pseudonym
[5] A pseudonym
Circumstances of that offending
37 During the plea hearing on 7 September 2020, counsel for the prosecution tendered a document dated 2 September 2020 and headed “Summary of Prosecution for Plea Purposes” (exhibit 1). Such exhibit, amongst other things, set out a summary of the prosecution opening in relation to the two charges to which you pleaded guilty. I was informed by your counsel that you agree with the contents of such document.
In particular I note the following:
Charge 1
·The complainant in relation to Charge 1 is Rose Aguirre, who is presently 51 years of age and was between 33 and 35 years of age at the time of the offending. You are her uncle by marriage.
·On an occasion between 1 January 2002 and 31 December 2004, Rose Aguirre and her partner visited you at your house in Bundoora. On arriving, Ms Aguirre made her way upstairs by herself to say hello to you in the upstairs loungeroom. As Ms Aguirre approached you to say hello, you grabbed her by the arm and pulled her down so she was sitting on your knee. You then immediately put you hand up the front of Ms Aguirre’s top and rubbed her breasts.
·Rosa Aguirre tried to get up and return to her partner, but you pulled her back down and continued rubbing her breasts until your wife and Ms Aguirre’s partner began to walk up the stairs. Ms Aguirre did not say anything to her partner or your wife about what had happened.
·On another occasion between 1 January 2002 and 31 December 2004, you were at Rose Aguirre’s house, massaging her as she lay on her stomach, wearing a nightie or t-shirt and underwear, on the loungeroom floor.
·You were massaging her thighs and your fingers got closer and closer to her groin area. You slowly put your finger under the elastic of her underwear and started rubbing her vaginal area. Rosa Aguirre froze and could not move. Eventually you stopped and Ms Aguirre got up and went to the toilet. As Ms Aguirre left the bathroom, you asked her “Have I done something wrong?”
·Rose Aguirre told you that you had to go and escorted you to the door, closing it firmly after you.
Charge 2
·The complainant in relation to Charge 2 is Rachael Steward, and on 20 June 2000, she had given birth to her fifth child. During this period, the complainant was separated from her partner and experiencing financial difficulty. You began giving Ms Steward money without your wife’s knowledge.
·You began to give Rachael Steward massages while visiting her residence in Melton by yourself in the middle of the day. You usually massaged Ms Steward’s neck, shoulder and back using olive oil. Ms Steward did not think anything of the massages as she was of the belief that you were a trainer, or similar, at a football club and you knew what you were doing.
·In January 2004, Rachael Steward and her children moved to another house in Cranbourne East. After they moved, you began giving Ms Steward massages and mainly, again, without your wife’s knowledge. Gradually, over time when you were giving the massages, your fingers moved to the front of the complainant’s body towards her breasts. The transition happened so subtly that Ms Steward did not pay much attention.
·Between 1 January 2004 and 31 December 2004, you visited Rachael Steward at the Cranbourne East address in the middle of the day and gave her a massage as she was sitting at a chair. Ms Steward was wearing a loose t-shirt and her bra was completely undone.
·During the massage, you told Rachael Steward that she should get her breasts checked for “lumps” and placed both of your hands completely over Ms Steward’s breasts, rubbing them in a way that a doctor would during a breast examination. You then ran your fingers over both of Ms Steward’s nipples.
·At the time of the offending, Rachael Steward was approximately 37 years old and you were approximately aged 51 to 52 years old.
·At that time, as you left the house, you gave Rachael Steward $50 to help with her children.
38 In her submissions, counsel for the prosecution noted that openly giving Rachael Steward money did not make the offending especially predatory as you had been providing financial support, which had commenced in tandem with your wife.
Arrest and interview
·On 16 August 2017, you attended the Epping Police Station by appointment, where you were formally cautioned and placed under arrest. On that day, a Record of Interview was conducted concerning the allegations that had been made by Rachael Steward and Rose Aguirre. During that Record of Interview you exercised your rights and on legal advice elected to make a “no comment” response to the allegations as they were put to you.
·You were then charged and released on bail.
Victim Impact Statements
39 Marie Duggan, the complainant in relation to Charge 3 on Indictment No. JJ1446823.3, made a Victim Impact Statement (declared on 1 September 2000), which was read by her during the course of the plea hearing on 7 September 2020 (see exhibit 2).
40 In that statement, she described how she has struggled for as long as she can remember, both emotionally and psychologically, because of your offending. She notes that she was diagnosed with depression at 13 years of age and struggled to come to terms with this for the next five years of her life before turning to medication to help her cope. She has been on different medications for the past eleven or so years of her life to help her with the depression and anxiety.
41 Over her teenage years following the sexual assault, she was angry and rebellious, and struggled to stay focused at school, and struggled to “fit in” because she was so depressed. She describes how she turned to drinking and taking drugs, and found herself in many dysfunctional and abusive relationships which landed her in unsafe situations. Over the years she has attempted to commit suicide on a number of occasions.
42 She also notes that when she describes how she got up the courage to disclose what happened to her, she struggled with the break-up of the relationships within the family, as her mum is the sister of your wife. She reflects that before all this, the family as a whole had been so close and that her father and you had even been best mates.
43 She also describes having suffered a breakdown, culminating after a time of feeling very hurt, confused, depressed, anxious and angry. After this she actually reported the offending.
44 She also describes that she has lost earnings because of her mental and physical state, and has incurred many expenses for travel and the cost of medical treatment. She also describes that whereas prior to your offending she was extroverted, confident and free, she then became withdrawn, hostile and introverted following the offending. Even today she has difficulty dealing with many people and feels that she cannot trust anyone. She notes that she has, in more recent times, grown closer to her brothers and sisters, and her mother, because they have witnessed her at her lowest and understand now what she has been struggling with.
45 Finally, Marie Duggan notes that her own daughter has suffered from the trauma of your offending in that, because of her anger and confusion, she hopes that her daughter understands that although it is difficult, she wanted to show her you must stand up for yourself when someone hurts you.
46 Rose Aguirre, the complainant in relation to Charge 1 on Indictment No. J11446823.4B, also made a Victim Impact Statement (declared on 2 September 2020) which she also read at the plea hearing on 7 August 2020 (see exhibit 3).
47 In her statement, Rose Aguirre describes how her whole life has been impacted with everything being different for her now. Your offending has affected her both physically, emotionally, mentally and socially, causing her to now lead a relatively solitary life. In particular, she has little contact with her immediate family and not much to do with her extended family at all. She has little trust in humankind and has tended to put more faith and trust in animals.
48 Rose Aguirre reflects that she has found it hard to meet people, but even harder to trust those people and there has been lots of problems in relation to her working life dealing with people. She also comments that the biggest impact on her life has been the loss of one person who genuinely cared for her, her partner of 25 years. She notes that she does not really care about you or what happens to you, and the hardest thing for her to comprehend is that someone – that is you – who is supposed to care for people within the family network, has ripped apart so many lives and caused so much damage which cannot be undone.
Criminal history
49 It was common ground that you had no prior convictions to this offending and indeed seemingly no subsequent offending. As noted, you have been in remand, and as at today’s date the pre-sentence detention is 226 days.
Your personal circumstances
50 Your counsel tendered a document headed “Outline of Defence Submissions upon Plea” (exhibit “A”). Partly on the basis of the material tendered and partly on the basis of other submissions made by your counsel, I note that you are 68 years old, having been born in North Western Victoria, being one of eight children.
51 Your father worked on the railways as a relief stationmaster, which required him to stand in for stationmasters if they were away or needed replacement. As a result of your father’s work, your family moved around frequently.
52 You commenced your schooling in Ballarat but attended many different primary schools, which caused disruption to your education. You did not enjoy your schooling on account of having to move around so frequently. Furthermore, you were bullied on occasion on account of your small size.
53 However, you were able to form and continue solid friendships. At the age of 11, the family moved to a housing commission house in West Heidelberg, and you remained in that general area thereafter. You attended Latrobe High School, but on finding that you were not performing well academically and as a result of continued bullying, you left school at the age of 15. However, during your school years, you did get involved in sport, particularly football.
54 On leaving school, you obtained a job as a grocery boy at a supermarket in East Ivanhoe and your then employer arranged for you to attend night school to learn managerial skills. After agreeing to fill a job vacancy at another supermarket in West Heidelberg, you were made redundant by the return of the worker who had left the job vacant.
55 At the age of 16, you engaged an employment agency and accepted the first job on offer – that is, as a telegram delivery boy at the Heidelberg Post Office. After six months you were promoted to the role of mail officer (working for the mailroom at the post office) and after about a further eight or nine months as a mail officer you were promoted again to a customer service role. At aged 18, you completed a course as a postal clerk.
56 When a mail officer, you met your wife at the age of 17 (she worked nearby) and you married in 1972 when both of you were aged 19.
57 In 1975, you purchased a house in Bundoora, and in 1975, a daughter was born and later, in 1981, your son was born.
58 You noted that others within the post office were being promoted and paid more favourably on account of attaining their HSC Certificates. In 1975, you enrolled in night school and over a two-year period, completed the HSC. When studying, you met a Telecom employee and an opportunity arose to transfer to that company.
59 At first you worked in the finance and accounting department, dealing with the operations side of the business and then you were transferred to a site in Ivanhoe, before becoming the manager of one of the Telecom shops. You performed well in this store, making it profitable, and was recruited to work in the commercial department in their Commander Sales Task Force. The Commander was a PABX phone system that was primarily aimed at business and commercial use. In 1983, after having performed well in this role for Telecom, you were promoted to national account manager for their corporate customers.
60 When working as the national account manager, you found such role stressful and suffered a health episode in the form of a panic attack immediately before giving a work conference in Canberra. After struggling with personal issues after this event, you decided that in order to rebuild your confidence you needed to force yourself into situations and experiences that you might find challenging.
61 To that end, you enrolled in a public speaking course and joined the National Speakers Association. You also took on a committee role at a local football club and later became president.
62 In 1988, you left Telecom and for several years worked in marketing and sales roles for other telecommunications businesses.
63 In 1995, you started your own business as a telecommunications consultant and such business involved:
– conducting phone bill audits for organisations, with a view to streamlining their accounts and saving them money on their telecommunication services
– working especially for councils and local government agencies, which led you to work with councils all over the State.
The business is very successful and is still in existence today.
64 You and your wife had your first grandchild in 1984 and your first great grandchild in 2014. Your son – who step-fathered two children from his wife’s previous marriage – is expecting his first biological child this year.
65 You entered into semi-retirement in 2017, putting a succession plan in place for your business. There had been a significant deterioration in the state of your health after the interview with police on 21 December 2016. At that time, you presented to your general practitioner the following day and completed a Mental Health Care Plan (which records that you were suffering from acute situational anxiety and depression and you had expressed experiencing suicidal thoughts). You were referred to a psychologist with a view to developing some coping skills.
66 Since being remanded, you have been mainly accommodated at Hopkins Correctional Centre. During the COVID-19 pandemic, you have not been able to receive any in-person visits. You have found this very difficult, as you have not been able to enjoy support from your family.
67 You are in reasonable health and have been prescribed medication for a number of conditions, including high blood pressure, high cholesterol, stomach ulcers and depression.
68 It was submitted by your counsel that for many years you had been an active member of the community through your participation in sports and service to sporting clubs in the following capacity:
(a)in 1974, you commenced training in jiu jitsu (obtaining a brown belt);
(b)from 1978, you played football for Old Paradians, and then La Trobe University;
(c)in 1983, you joined a local football club committee and later became vice-president, and then president, of that club;
(d)in 1993, you obtained certification to become a field umpire in football and thereafter umpired football games in the Victorian Amateur Football Association. You umpired over several divisions, ultimately being asked to umpire under-19’s football so that you could mentor more junior umpires;
(e)in 1998, you joined a masters (over 40s) football team in Essendon, subsequently representing Victoria in the National Carnival;
(f)you are a keen golfer and served as a committee member at a local golf club for a period of five years from 2008 to 2012. In 2013, you were appointed captain of the club and held this position for three years, and was involved with organising a range of competitions held by the club. You were also the chairman of the rules committee and co-chair of the grounds committee.
69 As part of exhibit “A”, there were tendered the following character references:
(a)From your younger brother, who described you as someone who had always been “kind, conscientious, diligent and family oriented”. He also described you as always being family oriented and friendly to all you met. Furthermore, you are always ready to lend a helping hand to anyone who asked;
(b)From your son, who states he believes you are “very remorseful for the acts that … [you] have been charged with”. He describes that over several years he observed you experiencing stress, worry, depression, regret, anxiety and remorse, and you have generally become more withdrawn. He notes this has put strain on family relationships, friendships and your marriage. Your son notes, again, like your brother, that you have been a decent, hardworking family man, who has always shown love, support and kindness to him and the family;
(c)From your married daughter, who states that she believes “wholeheartedly” that you are “sincerely remorseful for any wrongdoing that … [you] have done”. She notes that as a direct result of these charges, you have suffered from depression and anxiety and have needed to be medicated for these mental-health conditions. Furthermore, she notes that you have sought professional counselling relating to those conditions.
She describes how you have been the owner of a successful business for the past 25 years and has been worried that you will no longer be able to be “there” for your wife and children. She notes that this has been very upsetting for you and you have been living with the worry that when people find out about your offending you do not want to cause upset or embarrassment to your immediate family. She expresses the view that you feel a lot of guilt and shame, and it has been very difficult for you to see your wife adjust to life without you.
In particular, she describes you, from her experience, as being a “hardworking, honest, resilient, patient, loving and protective person who would do anything to help us even in … [your] own time of need”. Furthermore, she notes that you are a very well-liked member of your community, with many friends, neighbours and family members that rely on your counsel and presence. In particular, when you are released from prison, she would not hesitate to trust you with her children, including her grandchildren, despite the nature of your charges;
(d)From one of your grandsons, who is a full-time student and a before-and-after-school coordinator. He refers to looking back when growing up with you, he is filled with “such fond memories of the time … [you] shared, whether it be trips to McDonald’s for a treat with … [his] brothers or playing in the backyard, … [you] always went out of … [your] way to show … [his] brothers and I whenever we were down and put a smile on our faces”.
He also asserts that you always had “their best interests at heart and loved to see us happy and thriving which almost brought tears at my debutante ball telling me how proud … [you were] of [him] and how he was happy to see me happy”.
He also notes that notwithstanding the offending, you have always “been the life of our family events, spreading smiles and laughter through everyone, simply making everybody’s days better”.
He believes that you would have a great deal of remorse for everything that has occurred and that he continues to love you very much;
(e)From a friend, a learning support officer, who lived near you and has known you for about 25 years. She notes that you have always shown kindness towards her family and that her daughter and son called you “uncle”. She notes that many years were spent sharing family birthdays, Christmases and the like together, where you were always respectful towards her family. She describes you as someone who would help if you had a problem and was also the person to go to if you were down, and you would put a smile on someone’s face. Furthermore, you would listen to problems without judgement and have been a wonderful friend for her family;
(f)From a friend, who describes knowing you for forty years, first as a neighbour and later as a friend. She describes you as someone who has always been “supportive” and “someone I could rely on for help if I needed”. She describes you as the person she would go to for advice.
She notes that you are also a friend of her children, spoke at 21st birthdays and was the MC at her son’s wedding. In turn, she was godmother to one of your grandsons. She notes that her family and your family spent many afternoons, barbeques and family occasions together. She also notes that she found you to be a family man, observed a wonderful relationship between you and your wife, and a very close relationship with your children and grandchildren. She describes you again as always being a “hardworking, supportive and caring man”.
Mitigating factors relied on by your counsel
70 Before referring to the particular mitigating circumstances submitted by your counsel, I note that your counsel made the following general submissions. It was submitted that:
(a) all of the offending is by its nature serious, and having regard to the number of victims and the period of time over which it occurred, it represents a level of criminality which calls for condign punishment. The accused’s culpability is accepted to be high, particularly in the case of offending against child victims;
(b) while the charges differ significantly in objective gravity, it is accepted that the only appropriate disposition for them is to impose sentences of imprisonment with orders for cumulation as between them and to fix a non-parole period;
(c) in comparison to more serious cases of sexual offending, your conduct was not accompanied by violence, threats of violence, or the use of weapons. The victims were not subjected to especially degrading or humiliating acts or comments, and you did not take photographs or make recordings of the abuse.
71 I accept such submissions.
72 Your counsel then turned to each of the offences and made various submissions in relation to those offences as follows:
(a) in relation to the offending involving complainant Marie Duggan (Indictment No. J11446823.3) – that is the course of conduct charge involving the touching of her breasts, buttocks and vagina – your counsel accepted, correctly in my view, that breach of trust is a circumstance of aggravation for this offence and furthermore it was an aggravating circumstance of the offence that it was committed as a course of conduct involving repeated occasions of the behaviour. The contact was not spontaneous and was facilitated by you normalising situations in which you massaged Marie Duggan;
(b) in relation to the offending involving Danielle Steward (Indictment No. J11446823.4A), your counsel accepted, again, correctly in my view, that such offending is a reasonably serious example of sexual penetration aggravated by the complainant’s age (10 or 11 years old) and a breach of trust. Your counsel, although accepting that there was an element of persistence in performing such act, the whole episode was shorter and less physically invasive than more serious examples of this type of offence;
(c) in relation to the offending involving Rose Aguirre (Charge 1 – Indictment No. J11446823.4B) – that is the rolled-up charge, including two incidents of the offence – your counsel submitted that the offending in relation to the first incident was a relatively less serious example of indecent assault. The offence was constituted by a single occasion of contact with a breast under clothing, which was not especially protracted. Your counsel further submitted that the offending in relation to the second incident can be described as a “more invasive form of contact”;
(d) in relation to the offending involving Rachael Steward (second charge – Indictment No. J11446823.4B), your counsel submitted again that such offending involving massaging of the breasts was a relatively less serious example of an indecent assault;
(e) your counsel also accepted that it is clear that the offences had substantial impact on each of the victims who provided a Victim Impact Statement, but pointed out, correctly, that a victim impact statement is only one factor of a balancing exercise and should not be permitted to “swamp” other considerations.
73 Your counsel submits that, for sentencing purposes, considerations of general deterrence, denunciation and just punishment are of “prima facie importance in sentencing for offending of this nature” and that general deterrence would be particularly relevant when a victim is a child. Your counsel, again correctly, points out that sentencing must also be informed by the legislative policy expressed in s37A of the Crimes Act 1958 of protecting children from sexual exploitation.
74 Your counsel submitted that given there are multiple complainants where the offending spans over several years, it is accepted that it is appropriate to give some weight to specific deterrence. However, he submitted, further, that the weight to be given to this factor – and to community protection – is lessened on account of a delay of what he says to be fourteen years since the original disclosure of the offending in 2006 and the absence of offending since that time.
Mitigating factors
75 Your counsel submitted that the following matters are relevant as mitigating factors in consideration of an appropriate sentence:
(a)Your guilty plea
You pleaded guilty to the two charges on Indictment No. J11446823.4B on 7 August 2020. Your counsel submitted that although it could not be said such plea was entered at the earliest opportunity, the plea of guilty was the product of negotiations that led to the withdrawal of a serious charge. In particular, it was submitted that such a plea of guilty had significant utilitarian value as the community has been saved the time and cost of running a trial (at a time when such savings are especially important due to the impacts of the COVID-19 pandemic on the business of the Court) and has obviated the need for Rose Aguirre and Rachael Steward – the respective complainants – of attending Court to give evidence in a trial;
(b)Character and prior criminal history
Your counsel submitted that you have no previous criminal history and while there is one matter pending – a charge remitted to the Magistrates’ Court – you have not been charged with any offence subsequent to the “end date” for this offending in early 2006. In particular, it was submitted that you fall to be sentenced as a man in your late sixties with no prior convictions, who is entitled to take in aid his previous good character – as supported by a very good work history and by way of character references;
(c)Delay
It was submitted by your counsel that there has been significant post-disclosure delay in this matter. While accepting that delay in disclosure is common for complainants in cases of sexual offending (particularly where the offences were committed against a child by a family member), your counsel submits that you have been aware of a number of the allegations against you since September 2006, when you were confronted with those allegations, which led to a division within the wider family.
In this sense, it is submitted that you have therefore lived with the stress and uncertainly of prospective criminal charges for more than a decade before you were charged. In particular, it was noted that:
(i)on 21 December 2016, you were interviewed for the first time by police. At that time, you experienced serious mental health consequences, including suicidal thoughts, and obtained a Mental Health Care Plan from your general practitioner (a GP Mental Health Plan was tendered);
(ii)you were not ultimately charged until 24 May 2018, some seventeen months later and, so it was submitted, there was therefore a second substantial period of stress and uncertainty;
(iii)a further twenty months elapsed before the initiation of charges and the commencement of your trials, with the completion of those trials impacted by the COVID-19 pandemic.
It was submitted that both limbs of the principles relating to delay are engaged in your case, in that delay has had some punitive effect (in the sense of causing stress and uncertainty) and is also evidence of rehabilitation;
(d)The impact of COVID-19 on the adversity of conditions in custody
It was submitted that your time in custody has coincided with the impact of the COVID-19 pandemic and the associated restrictions in Victorian prisons. It was submitted that given the limited case law on the impact of the COVID-19 pandemic on prisoners, it has been recognised that the imposition of lockdown conditions on prisoners and the risk of infection in custodial environments “is causing additional stress and concern for prisoners and their family” at the present time. (Reference was made to Brown (aka Davis) v R [2020] VSCA 60 at paragraphs [48]-[49]). It was submitted that the burden of imprisonment was greater than usual due to the restrictions imposed by Corrections Victoria. In particular, family and personal visits have been suspended indefinitely, and services and programs for prisoners are restricted.
Given the current situation in the Victorian community, the inference that these restrictions will continue for a substantial time in the future – however long that may be – is submitted to be sound. Some allowance should therefore be made in sentencing the accused for the unusual burden currently being faced by prisoners such as yourself;
(e)Prospects of rehabilitation
It was submitted on your behalf that you have “very good prospects of rehabilitation”, having regard to your previous good character and work history, and the fact that in the fourteen years following disclosure of some of the offences you did not re-offend. Your counsel noted that you have excellent support from family and close friends and refers to the various character references to which the Court has already made reference to.
76 I do note that although your counsel identified some ongoing medical conditions that you suffer from, he expressly disclaimed any reliance on any of the so-called principles enunciated in R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269.
77 Your counsel referred to, in general terms, the following cases recording sentences for sexual penetration following both jury trials and pleas of guilty: Lyon (a Pseudonym) v R [2019] VSCA 251; Schulz v R [2019] VSCA 179; Osborne v R [2018] VSCA 160; Tones v R [2017] VSCA 118 and Ashley v R [2016] VSCA 246. As accepted by your counsel, such cases are only of some assistance, as ultimately there are a number of variables which have to be considered in forming an appropriate sentence.
The position of the Prosecution
78 In response to your counsel’s submissions, counsel for the prosecution submitted the following:
(a)Marie Duggan, the complainant in Indictment No. J11446823.3, was sexually abused by you when her mother was out of the home and her father was absent. Such offending was protracted over a long period of time and occurred at the complainant’s home, which is an aggravating factor;
(b)although not disputing that the information available would suggest that you have had a prior good character, counsel for the prosecution highlighted that many offenders in relation to sexual offending do exhibit prior good character. It was further submitted that just because you have had no further offending since 2006, it does not necessarily indicate that you have good prospects of rehabilitation, as it may be that since then you have been prevented from continuing sexual activity due to lack of opportunities;
(c)although accepting that a plea in relation to the two charges on Indictment No. J11446823.4B does entitle you to a discount in relation to the sentence, it was submitted that this does not indicate that you were facilitating the course of justice. In this respect, it was submitted that you have shown no remorse whatsoever in relation to your offending;
(d)any delay should not attract any discount of sentence, given that it was not inordinate, considering the number of complainants involved in this matter, and there was no inefficiency on the part of the OPP;
(e)although counsel for the prosecution accepts that on the basis of Brown (aka Davis) v R (op cit) at paragraphs [48]-[49], it is open to determine that COVID-19’s affect on prisoners’ living conditions can be a mitigatory factor in certain circumstances, she submitted that prisoners are probably “safer” than the general community, due to the various quarantine requirements and strict protocols. Overall, she submitted that such mitigatory impact is “very minor”;
(f)counsel for the prosecution also referred to the Court of Appeal decision Soo v R [2014] VSCA 304, wherein at the end of that judgment there is set out a number of cases setting out the circumstances and consequential penalties in relation to offences involving indecent acts with a child under 16. She also referred to McPherson v R [2014] VSCA 59 in relation to offences involving indecent acts with children. Again, although those cases are of some assistance, many of them involved pleas of guilty to the relevant offence and, of course, each case had a variety of different circumstances;
(g)counsel for the prosecution submitted that the relevant sentencing considerations are specific and general deterrence, just punishment, denunciation and protection of the community.
Conclusion
79 Juries have found you guilty of wilfully committing an indecent act with a child under 16 years, sexual penetration of a child under 16, and you have pleaded guilty to two charges of indecent assault. Each of the complainants is a member of your extended family.
80 Whereas prior to the subject offending you were seemingly well loved within the wider family as a fun-loving uncle or great uncle who was available to give help when required, and who was generally respected and liked for his social involvement with the family. Furthermore, based on the information supplied to the Court, you had been a hardworking man, building up your business over many years, and also being involved in community activities and playing a role in the development of those activities.
81 As perhaps you would know more than anyone, your flagrant offending involving female members of your extended family has disrupted the family dramatically and no doubt permanently.
Your offending
82 The protection of children in our community is of great importance and, accordingly, any sexual offences involving children generally constitute very serious offences. Just as here, such offences involving children generally involve a breach of trust on the part of the offender.
83 As I have already recorded in response to some of the submissions made by your counsel, I consider:
(a)that all of the offending, by its nature, is serious, and having regard to the number of victims and the period of time over which it occurred, it represents a level of criminality which calls for, as your counsel stated, “condign punishment”. I consider your culpability to be high, particularly in the case of offending against the child victims;
(b)while the charges differ in objective gravity, I am of the opinion that the only appropriate disposition is to impose sentences of imprisonment in relation to each charge, with some degree of cumulation as between them, and to fix a non-parole period.
84 Again, as I have already recorded, I accept that your offending, serious as it was, was not accompanied by violence, threats of violence, or the use of weapons. Neither were the victims subject to especially degrading or humiliating acts or comments, and you did not take photographs or make recordings of the abuse.
85 In relation to the offending involving complainant Marie Duggan (Indictment No. J11446823.3) – that is, the course of conduct charge involving the touching of breasts, buttock and vagina:
(a)I consider that such offences are aggravated by the significant breach of trust that the complainant would have had in you prior to the offending built up over many years, and such offending was committed as a course of conduct involving repeated occasions of the behaviour. Furthermore, most of the offending occurred at the complainant’s home when you attended on Thursday night, leaving nowhere for the complainant to avoid contact with you.
Again, as your counsel accepted, the contact was not spontaneous and was facilitated by normalising situations in which you massaged Marie Duggan. I do accept that most of the massaging involved the breasts, a lesser amount in relation to the buttocks, and on at least one occasion, massaging in the vaginal area. The complainant was approximately 13 years old when this occurred and it extended to when she was 14 or 15 on a reasonably regular basis;
(b)In relation to the offending involving Danielle Steward (Indictment No. J11446823.4A), such offending is particularly serious, as it involved the deep penetration of your finger into the vagina of the complainant when she was 10 or 11 years old. At the time of the offending, she was on the top bunk of a bunkbed, lightly sleeping, when you entered the room and performed the act. Again, I consider this is a dramatic breach of trust that the complainant would have had in you, developed over the years in the past. Although the act was of relatively short duration – the complainant thought perhaps a few minutes – she experienced pain and an uncomfortableness, and throughout such activity was attempting to position herself so she could not be penetrated;
(c)In relation to the offending involving Rose Aguirre (Charge 1 – Indictment No. J11446823.4B) – that is the rolled-up charge, including two incidents of offending – when the complainant was between the age of 33 and 35 years. I accept that the first episode of offending was opportunistic, involving you grabbing Rose Aguirre when she made her way upstairs to say hello to you in your upstairs loungeroom, and then pulling her down so she was sitting on your knee, and immediately putting your hand up the front of Rose Aguirre’s top and rubbing her breasts. When she tried to get up, you pulled her back down and continued rubbing her breasts until your wife and Rose Aguirre’s partner began to walk up the stairs. Although no doubt frightening for Rose Aguirre, such event was short-lived and, in my view, is not as objectively serious as the earlier charges.
However, the second incident involved you massaging Rose Aquirre when she lay on her stomach. You massaged her thighs and your fingers got closer and closer to her groin area, and you slowly put your finger under the elastic of her underwear and started rubbing her vaginal area. Rose Aguirre froze and could not move. Eventually you stopped, and Rose Aguirre got up and went to the toilet. I consider such offending more serious, given that you were purporting to give Rose Aguirre a massage and deliberately moved your fingers closer and closer to the groin area and started rubbing her vaginal area;
(d)In relation to the offending involving Rachael Steward (Charge 2 – Indictment No. J11446823.4B), the complainant was approximately 37 years old when you gave her a massage and she was sitting in a chair. During the course the massage, you told Rachael Steward that she should get her breasts checked for lumps, and then placed both of your hands completely over Rachael Steward’s breasts, rubbing them in a way that a doctor would during a breast examination. You then ran your fingers over both of Rachael Steward’s nipples. Again, I consider the objective gravity of such offending less than the penetration offending but, again, you manoeuvred the situation for her to have a massage, during which, purporting to be assisting her with a breast examination.
86 One only has to read the two Victim Impact Statements, one from Marie Duggan, the complainant in relation to Charge 3 on Indictment No. JJ11446823.3, and one from Rose Aguirre, in relation to Charge 1 on Indictment No. JJ11446823.4B, to appreciate the turmoil which your offending has caused in relation to those complainants, with such turmoil continuing. Both complainants speak of their lack of trust in people and how your offending has impacted on many aspects of their lives.
Serious sex offender provisions
87 Part 2A of the Sentencing Act 1991, which deals with “serious offenders” and, in particular, with “serious sexual offenders”, provides if an offender is sentenced to a term of imprisonment on two charges related to sexual offending, any subsequent sentences involving sexual sentences must involve the offender being sentenced as a “serious sexual offender”.
88 Section 6D of the Sentencing Act provides that in sentencing any sexual offender as a serious sexual offender, the Court, in determining the length of that sentence, must regard the protection of the community as the principal purpose of sentencing and may, in order to achieve that purpose, impose a sentence longer than which is proportionate to the gravity of the offence, considered in the light of its objective circumstances. Counsel for the prosecution does not seek such a disproportionate sentence and in all the circumstances, I will not order a disproportionate sentence.
89 Section 6E of the Sentencing Act contains a presumption of cumulation between charges when sentencing serious sexual offenders. As you fall into this category, I must consider the presumption when formulating your sentence. Any orders of cumulation must, however, be moderated to the extent necessary to give effect to the principle of totality (see Director of Public Prosecutions v Bales [2015] VSCA 261 at paragraphs [42]-[44]). The totality principle requires me to ensure that your sentence remains “just and appropriate” for the whole of your offending, even though I will be sentencing you to multiple terms of imprisonment involving multiple victims.
90 I also again refer to the Court of Appeal decision of Bales (op cit) where the Court, consisting of Osborn, Kaye and McLeish JJA, stated, at paragraph [44]:
“It is plain that the purpose of s 6E is to require an approach to sentencing which marks specific denunciation of each offence to which the section applies. That is particularly the case when the offending involves, as it does here, a number of different victims. The legislative policy inherent in s 6E is that the offences committed against individual victims will be separate and distinct subjects of punishment. This will generally involve orders for cumulation, moderated to the extent necessary to give effect to the principle of totality so far as that can be done consistently with the policy of the section.”
91 Section 6F of the Sentencing Act directs that if a court sentences a serious offender for a relevant offence it must, at the time of doing so, cause to be entered into the records of the Court in respect of that offence, the fact that the offender was sentenced for it as a serious offender.
Application of the Sex Offenders Registration Act 2004
92 Section 34(1)(c)(i) of the Sex Offenders Registration Act 2004 requires that a period of registration as a sexual offender is for life in circumstances where:
(a) the offender has been convicted of two or more Class 1 offences; or
(b)has been found guilty of a Class 1 offence or one or more Class 2 offences; or
(c) has been found guilty of two or more Class 3 offences.
93 You have been found guilty of one Class 1 offence – sexual penetration of a child under 16 – and one Class 2 offence – indecent act with a child under 16, and accordingly, mandatory registration applies. Pursuant to s34(c)(ii) of the Act, the reporting period is for life.
Mitigating factors relied on by your counsel
94 Your counsel made the following submissions in mitigation of any sentence:
(a)The plea of guilty in relation to the two charges on Indictment No. J11446823.4B.
Your counsel accepted, appropriately in my view, that such a plea of guilty was extremely late and seemingly borne because of negotiations between the parties pending the third hearing in relation to further historical sex offending in relation to members of your extended family. Consistent with the principles enunciated in Phillips v R [2012] VSCA 140, you are entitled to a less severe sentence than otherwise would have been imposed on the basis that such a plea of guilty, albeit late, did have the utilitarian value of avoiding a trial with its attendant cost of time and money and, more particularly, obviating the need for your victims of that offending to give evidence and relive the circumstances of such offending.
It is always a matter for the sentencing judge whether remorse or a willingness to facilitate the course of justice and acceptance of responsibility is to be inferred from a plea of guilty (see Phillips v R (op cit) at paragraph [96]). I consider that you have shown no remorse in relation to any of your offending or a willingness to facilitate the course of justice and acceptance of responsibility. Although there are references in a couple of your character references to the belief that you have remorse in relation to such offending, I consider that the plea of guilty was little more than you entering a bargain to avoid a more serious charge;
(b)Your character and lack of prior criminal history
I do accept that on the basis of the material before me, that prior to the subject offending, you were a person of good character, with a good work record, and involvement in community activity. Furthermore, on the basis of the material before me, other than the charge remitted to the Magistrates’ Court, you have not been charged with any offence subsequent to the “end date" for this offending in early 2006.
However, as pointed out by counsel for the prosecution, it is a common situation, particularly in sexual offending, that the offender has good character. Furthermore, although clearly enough there has been no further charges for sexual offending from early 2006, it is of course from that period when it became known within the family of your sexually predatory nature in relation to your various nieces and great nieces.
However, I do give some weight to your previous good character and, indeed, your seeming lack of any further offending since 2006;
(c)The impact of COVID-19 on the adversity of conditions in custody
As pointed out by both counsel, Brown (aka Davis) v R (op cit) at paragraphs [48]-[49], recognised that COVID-19 can have an adverse effect on conditions in custody. In particular, I accept that the following matters are relevant in making an assessment of any mitigating nature of such impact. I consider that the imposition of lockdown conditions on prisoners, the risk of infection in custodial environments, the suspension of family and personal visits, and the restriction of various services and programs normally open to prisoners, all impact in various ways, increasing the adversity of conditions in custody. Clearly enough, members of the general public also suffer adverse conditions in their day-to-day lives because of certain restrictions as a result of the COVID-19 pandemic, but on balance, I consider that the matters to which I have referred are relevant and do, in a meaningful way, add to the adversity of conditions in custody. Accordingly, I will take into account this factor as a mitigating matter in coming to an appropriate sentence;
(d)Delay
There is an issue between the parties as to whether the legal concept of “delay” has any role to play in mitigation in the circumstances of this matter.
Significant delay between the time an offender is interviewed by police and the time charges are laid, as well as delay between the laying of charges and trial, can be a powerful mitigating factor (See Tones v R (op cit) at paragraph [36]; Thomas v R [2019] VSCA 223 at paragraph [66]). However, delay in itself creates no automatic right to a sentencing discount. The most that can be said is that where the prosecution unduly delays bringing the matter to the Court, there is much more likely to be a discount.
There are two limbs to delay as a mitigating factor. The first concerns unfairness to the offender, in that a charge (or its prospect) was “hanging over” their head and causes anxiety and the like (“the unfairness” limb) (see R v Nikodjevic [2004] VSCA 222 at paragraph [22]). The second limb concerns whether, during the period of the delay, the offender made progress towards rehabilitation and if prospects of ongoing rehabilitation are good (“the rehabilitation” limb) (see R v Merrett, Piggott and Ferrari (2007) 14 VR 392 – at pages 400-401).
How these two limbs operate to mitigate sentence depends on the cause of the delay, the length of delay, and the consequences of the delay. The presence of delay calls for a “considerable measure of understanding and flexibility in approach” (see Mill v R (1988) 166 CLR 59).
Where an offender relies on either limb of delay, they must provide some evidence to support the submission (see Tones v R (op cit) at paragraph [38]). Where the unfairness limb is invoked, sometimes a psychological report may support the stress endured by the offender, but there may also be cases where, depending upon the duration of delay, its cause and other circumstances, a court might accept that the delay caused anxiety to the offender without the need for supporting evidence (see Tones v R (op cit) at paragraph [38]).
Evidence of a rehabilitation limb would need to address its twin aspects of remorse and rehabilitation. The abstinence from further offending will be relevant, but not in itself sufficient (see Tones v R (op cit) at paragraph [42]). Evidence that an offender has made significant positive changes in their life enables the Court to mitigate this aspect of delay (see Merrett (op cit)).
A delay need not be inordinate before it may be considered in mitigation (see R v Miceli [1998] 4 VR 588 at page 591). If it is unduly long, it may and often will be taken as a mitigating factor (see R v Idolo (Unreported, Supreme Court of Victoria Court of Appeal, 21 April 1998, Phillips, CJ, Tadgell and Ormiston JJA, at paragraph [13]).
Whether delay is “undue” depends on a range of factors, including its elapsed time, the nature, complexity and sophistication of the offence; the extent of the investigation needed to prepare for a charge and prove the offence; for a series of offences, the period of time over which they were committed, and the degree to which the offender cooperated with the authorities or, conversely, their lack of cooperation or any obstruction (see Idolo (op cit)).
This is not an exhaustive list. Determining if delay was undue “is essentially a matter of degree to which commonsense is to be applied” (see Idolo (op cit) at paragraph [13]). A question of how and if delay might affect a court’s exercise of the sentencing discretion will vary according to the circumstances of the case.
Delay is most commonly a direct mitigating circumstance, where the responsibility of that delay does not lie with the offender (see Pang v R [2018] VSCA 5 at paragraph [37]). Sometimes there is no, or only insufficient, explanation for delay. That the absence of an explanation for delay cannot by itself justify any reduction that if it was satisfactorily explained (see Merrett (op cit) at page 394). In effect, explanations for delay are relevant only so far as they may demonstrate that the offender is responsible for it.
In the circumstances of this matter, your counsel submits that you had been aware of a number of the allegations against you since September 2006, when you were confronted with those allegations by members of your wider family. In this sense, it was submitted that you have lived with the stress and uncertainty of prospective criminal charges for more than a decade before you were charged.
Furthermore, on 21 December 2016, you were interviewed for the first time by police, and at that time you experienced serious mental health consequences, including suicidal thoughts, and obtained a mental health care package from your general practitioner.
You were not ultimately charged until 24 May 2018, some 17 months later, and that there was therefore a second substantial period of stress and uncertainty. A further 20 months elapsed before the initiation of charges and the commencement of your trials, with the completion of those trials impacted by the COVID-19 pandemic.
Although I accept that you became aware of allegations in or about September 2006, there was no suggestion at that time there would be reporting to the police. As pointed out by your counsel, reporting occurred much later, culminating in an interview on 21 December 2016, and being charged on 24 May 2018.
In all the circumstances, I am not prepared to use any so-called “delay” from September 2006 to December 2016 as relevant delay for the purposes of mitigation.
However, I do accept that from 21 December 2016 until your ultimate commencement of trial, has given rise to undue delay over that period and there would appear to be no real reason for that delay. However, consistent with authority, I am satisfied that to the extent that there is that undue delay, it is not your fault.
Furthermore, as already noted, following your interview with police, you experienced mental health consequences, including suicidal thoughts, and you have had hanging over your head the practical consequences – the prospect of imprisonment – of your offending. In this sense, I am prepared to mitigate your sentence to some degree on the basis of the so-called “unfairness limb”.
Again, in relation to the “rehabilitation limb”, I consider that the only relevant delay would be from when you were interviewed by police in 2016 over the period up to your trials in 2020. In any event, it is to be noted that in order for the rehabilitation limb to be taken into account, there must be evidence of remorse and rehabilitation over that period – whatever the period may be – as long as it is at least undue. Again, the mere abstinence from further offending will be relevant, but not in itself sufficient.
In all the circumstances, although I accept, as I have recorded above, that the period of December 2016 until the advent of your trials was an undue delay for which no blame can be attached to you, I do not consider that there is a basis for mitigation of sentence utilising the so-called “rehabilitation limb”, given my finding that you have showed no remorse or demonstrated any real attempt at rehabilitation.
(e)Prospects of rehabilitation
Your counsel submitted on your behalf that you have “very good prospects of rehabilitation”, having regard to your previous good character and work history and the fact that in the 14 years following disclosure of some of the offences, you have not re-offended. Furthermore, your counsel noted that you have excellent support from family and close friends, and refers to the various character references to which the Court has already made reference to.
After a consideration of all the material, I consider that your prospects of rehabilitation are only reasonable, as I consider that you have shown no remorse in relation to your offending. Clearly enough, you have not seemingly offended since 2006, but of course, that date marked when your offending generally became known to your extended family. Since then, there has been no evidence that you have pursued any particular course or psychological treatment to assist you with your offending. I do accept that you seemingly have excellent support from your immediate family and close friends, and in this respect I do refer to the various character references to which the Court has already made reference to.
95 As I have already stated, I consider that the relevant sentencing principles involve general deterrence, just punishment, denunciation and protection of the community. Furthermore, given the number of victims of your offending, and indeed what I consider to be your lack of remorse, I also consider that specific deterrence is also relevant, but not to the same degree as the other matters.
96 I take all this into account, together with the various mitigating factors which I have referred to.
97 Please be upstanding:
(a)in relation to Charge 3 on Indictment No. J11446823.3, you are convicted and sentenced to two (2) years’ imprisonment;
(b)in relation to the charge on Indictment No. J11446823.4A, you are convicted and sentenced to a period of three (3) years’ imprisonment. This is the base sentence;
(c)in relation to the Indictment No. J11446823.4B:
(i)in relation to Charge 1, you are convicted and sentenced to a period of imprisonment of fourteen (14) months;
(ii)in relation to Charge 2, you are convicted and sentenced to a period of imprisonment of seven (7) months.
98 I direct that 14 months of the sentence in relation to Charge 3 on Indictment No. J11446823.3, eight months of the sentence in relation to Charge 1 on Indictment No. J11446823.4B and four months of the sentence in relation to Charge 2 on Indictment No. J11446823.4B to be served cumulatively upon each other and upon the sentence imposed in relation to the charge on Indictment No. J11446823.4A.
99 The total effective sentence is five (5) years and two (2) months and I order a non-parole period of three (3) years and five (5) months.
100 I declare that you have served up to, but not including this day, 226 days in pre-sentence detention, and such pre-sentence detention should be administratively deducted from the sentence ordered against you.
101 Pursuant to s6AAA of the Sentencing Act 1991, I declare that save for your pleas of guilty on Indictment No. J11446823.4B, I would have ordered a period of imprisonment of 22 months in relation to Charge 1 and a period of imprisonment of 10 months in relation to Charge 2.
102 Pursuant to the provisions of the Sex Offenders Registration Act 2004, and bearing in mind the nature of the offences, I order pursuant to s34(1)(c)(ii) of the Sex Offenders Registration Act 2004, your name to be entered on the register of sex offenders, with the length of the reporting period being the remainder of your life.
103 I also declare that you have been convicted and sentenced as a serious sexual offender pursuant to the provisions of the Sentencing Act 1991 in relation to Charges 1 and 2 on Indictment No. J11446823.4B.
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