Director of Public Prosecutions v Spence (a pseudonym)
[2017] VCC 2004
•21 December 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WAYNE SPENCE [a pseudonym] |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 September and 13 December 2017 | |
DATE OF SENTENCE: | 21 December 2017 | |
CASE MAY BE CITED AS: | DPP v Spence (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 2004 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms S. MacDougall | Office of Public Prosecutions |
| For the Accused | Ms J. Clark | Valos Black & Associated |
To ensure there is no possibility of identification, this sentence has been anonymised by the adoption of pseudonyms in place of names of the accused, victims and family or witnesses.
HER HONOUR:
1 Wayne Spence,[1] you have been found guilty by jury verdict of two charges of incest. Those offences occurred between 1 March 2010 and 1 June 2010, specifically over two consecutive days. The maximum penalty applicable to the offence of incest is 25 years’ imprisonment.
[1] A pseudonym.
2 Briefly, by way of history. You had previously been found guilty by jury verdict on 19 February 2015 of three charges of indecent act with a child under 16, one charge of incest and one charge of common law assault involving the same complainant, your daughter, Emma Spence.[2] You were sentenced by me on 26 June 2015 following that trial to 4 years and 7 months’ imprisonment with a non-parole period of 2 years and 9 months’ imprisonment.
[2] A pseudonym.
3 At the time of that trial, in 2015, the jury were unable to reach a verdict on the two charges currently before me for sentence. My sentencing remarks of 26 June 2015 should be read in conjunction with these sentencing remarks, as I have at that time summarised various medical reports and material relevant to you and relevant to sentencing principles that generally refer to sexual offending against children.
4 In the intervening period between that trial and the current trial, there was an appeal to the Court of Appeal in Spence [a pseudonym] v R[3]. Thereafter there was a further trial of these two charges of incest before his Honour Judge Mullaly in May 2017. At that time, again, the jury were unable to reach a verdict.
[3] [2016] VSCA 265
5 Your most recent trial commenced before me on 10 July 2017 and unanimous verdicts were returned on both charges.
6 It is not necessary for me to recount in great detail the facts of this matter as they were aired throughout the course of the hearing and in particular through the evidence of the complainant, Emma, evidence previously recorded in relation to a VARE and also Special Hearing (ie: cross-examination). In other words, the same evidence was before this jury from the complainant regarding this offending. There were no witnesses to your offending.
7 Very briefly, regarding Charge 1, the evidence before the jury was that this incident happened at 8 James Street (your home), on the first occasion Emma went to visit you after you and her mother separated. She was watching a ‘Spiderman’ movie in the lounge room, went to get some cordial and when she returned, you pushed her over the couch and put your penis inside her vagina. Emma described this incident as “the occasion when she lost her virginity”. She described you taking off her clothes and putting your penis into her vagina. She tried to scream but you put your hand over her mouth and told her, “don’t scream.” She described a small amount of blood coming from her vagina, and of you saying “it was better that you did it, rather than a stranger”, and further telling her, “it was way more easier after I popped your cherry”. Emma described you ejaculating on her stomach and that it felt like “warm rain”.
8 Turning to Charge 2, this occurred during that same access visit but the following night. Emma was on the couch and you went into a room to check on your then partner, Lauren,[4] and returned with a vibrator. At approximately 12.30am one of the boys came out for a drink and you put him back to bed. You then took Emma’s clothes off. She said she did not want this to happen but you hit her across the face and told her to shut up.
[4] A pseudonym.
9 I note at your initial trial the jury returned a verdict of guilty relevant to that assault (hit across face - Charge 6 as it was then). I sentenced you to 8 months’ imprisonment on that charge and cumulated 3 months of that onto the other orders I made for cumulation and upon the base sentence.
10 You used the vibrator around the outside of her vaginal area, then put your hand over her mouth and tried to put it in. After drawing circles with the vibrator around her vagina, you put it inside Emma and back out again, repeating that process about three times.
11 An aggravating feature in relation to Charge 1 was your failure to use a condom (R v Khem[5]). Also all offending involved the breach of trust of your daughter and also her mother.
[5] (2008) 186 A Crim R 465
12 I also note Charge 2 occurred in the context of immediately preceding violence. You have already been sentenced for that violence (Charge 6, June 2015) and are of course not being re-sentenced for that. Rather it only puts your offending in Charge 2 into some context.
13 You proceeded to trial, which of course was your right. You are not penalised for running a trial, rather you do not receive a discount for pleas of guilty.
14 You do not have any prior court appearances, although have one subsequent appearance for sexual offending, which is relevant when assessing your rehabilitation prospects.
15 A number of reports were before me including some also before me in June 2015. From Dr Nina Zimmerman, Forensic Psychiatrist, dated 3 September 2017, who prepared a psychiatric report at the request of your solicitors following the finding of guilt in relation to the charges of incest before me.
16 Details were provided regarding your history and background. You were born near Albury in New South Wales, and your father was of Aboriginal heritage. You did not have any relationship with your biological father until you met him when you were a teenager. You then lived with him for a period of time before your first marriage. I was told in that report, you continued to have contact with him.
17 Your mother re-partnered and raised you with your stepfather. There were six step-siblings from that relationship. All your step-siblings lived in New South Wales and you have not had any contact with them.
18 You were raised in the small town of Rugby, New South Wales. You said your mother kept you at home most of the time because you ‘could not learn’ anything.
19 You spent three years at one high school, with a special teacher coming into work with you and another child every second day.
20 In Year 10, you moved to Goulburn High School, a mainstream school although you were placed in the special needs class. You said you did not learn to read or write.
21 You said you frequently truanted from school, but could not recall ever being suspended or expelled.
22 You recalled being neglected as a child, of being left for months at a time to live with families or friends.
23 You also recall being hospitalised for a serious asthma attack, after which your mother and stepfather left you in hospital for approximately six months while the hospital tracked down your family. You also described physical abuse by your alcoholic stepfather.
24 Your mother and stepfather left you when you finished Year 10 and took the other children with them. You mother apparently had multiple sclerosis and your stepfather, you said, did not like you because you had a different father.
25 You have been on a Disability Support Pension since you were 16, however had worked in sheltered workshops, done odd jobs, including house painting.
26 You described your wife as having two children to a previous partner, and then your four children together. After that break-up, you went on to have a further three children with your subsequent wife, Lauren. The eldest child, Emma, is the victim of your index offending. She is currently 20 years of age. The youngest child is in primary school.
27 You described your relationship with Christine[6] as “constant arguing”. You left her after your brother, and his then girlfriend, Lauren, moved in. Your brother’s relationship broke down, then Lauren moved in with you and began that relationship.
[6] A pseudonym.
28 You denied any interest in pre-pubescent or pubescent children. Reference was made to information available to Dr Zimmerman in a report from Simon Kennedy, Forensic Psychologist, dated 30 May 2012, which provided further details regarding your developmental history.
29 Dr Zimmerman also referred to two reports of David Ball, Psychologist, dated 17 and 18 June 2015, to which I previously referred and summarised in my sentencing remarks in June 2015, and which I will not repeat here. I have, however, re-read those reports for this hearing.
30 You told Dr Zimmerman you had never been admitted to a psychiatric unit, or been prescribed any psychiatric medication, or seen mental health professionals in the community. Whilst in Port Phillip Prison, however, you commenced antidepressant medication, however that ceased, as it was not suitable for you. You were not currently taking any psychotropic medication.
31 You said you had been told you had an Acquired Brain Injury (ABI) and you recalled being hospitalised twice in primary school with severe asthma.
32 You said you were fully independent with your self-care, and socially, although you tended to trust people too much. You denied any history of self-harm and were not aware of any psychiatric illness in your family.
33 Turning to other sources relevant to your psychiatric history, Dr Zimmerman referred to the report of Mr Kennedy in 2012. At that time testing revealed a full-scale IQ of between 58 and 66, placing you at the lower end of the mildly intellectually disabled category. It was noted you had a relative weakness in verbal IQ.
34 Dr Zimmerman referred to the report of Mr Ball in 2015, in which he concluded, based on previous testing, you had a mild intellectual disability and were unlikely to achieve functional literacy or numeracy. Mr Ball did not find any evidence of psychiatric disorder or of a paedophilic disorder. He was unable to formally test you and your personality because of your illiteracy, however, described you as having deficits in social reasoning and a tendency to be impulsive and to make poor decisions. Mr Ball referred to you being admitted to hospital as a result of a severe asthma attack when you were approximately 5, which resulted in an ABI.
35 You said the only drugs you had ever used were alcohol and Cannabis. You were only ever a social drinker of whisky, avoiding beer, as you associated it with violence from your alcoholic stepfather. You reported social drinking as an adult.
36 You advised Dr Zimmerman you had previously been convicted of underage sexual activity in 2012, for which you received an 18 month Community Correction Order and successfully completed it.
37 Regarding the offences for which you were most recently found guilty, you said they were all fabrications. That these were stories your daughter had made up, as she was very upset when you and her mother separated. You maintained you did not commit the offences. I do not find you to be remorseful, and your counsel, Ms Clark, did not urge the contrary.
38 Regarding your experiences in prison to date, you said there had not been any effort by prison authorities and staff at Ararat to assist you with the special needs that flowed from your intellectual disability. You had to rely on help from other inmates with tasks such as reading letters or completing forms, and that you did not like having to trust strangers with material that might be personal in nature. Further information was provided regarding your time in custody at this plea and in a report of Dr Tagaki, to which I shall shortly refer.
39 You described not having any community supports in prison, and no contact with your children, although I note some contact has occurred, referred to by Alice[7] in her correspondence to the Court (Exhibit 6).
[7] A pseudonym.
40 You said there were inmates who would look out for you, but you also felt they took advantage of you.
41 You have been assessed for the Sex Offenders Program at Ararat, but were told you could not take part in it because of your intellectual disability and I discussed that with Ms Clark. As at the date of the report in September 2017, you were still waiting for that program. I can only urge the authorities to assist you to participate in programs appropriate to your needs and abilities.
42 Whilst in custody, you were working in the assembly area three days a week and had Koori art on the other two days. You said you had sold at least one of your pieces of art. I discussed with Ms Clark the Torch Project, with which I am familiar and encourage you to continue your interest in art.
43 You became extremely depressed, upset, and felt suicidal when Lauren ceased contact with you last year.
44 At interview, you came across as brooding and resentful about perceived injustices, especially regarding the guilty verdicts and the lack of support you said you received in prison for your intellectual disability. There was no evidence, however, of any formal thought disorder.
45 Turning to her opinion, Dr Zimmerman concluded you had a diagnosis of mild intellectual disability. Information regarding your childhood came solely from your self-report, and Dr Zimmerman noted some discrepancies between the accounts provided to her, to those given to the two earlier assessing psychologists, as do I.
46 There were she said, however, some consistency in your descriptions, including an absent father, an alcoholic abusive stepfather and a mother who would abandon you for months at a time, failing to engage at school, and also of you having been diagnosed with an ABI.
47 There was no abuse of drugs or alcohol over your life and no offending until 2012. You had worked in unskilled jobs, sheltered workshops, and been on a Disability Support Pension because of your intellectual disability, although were not registered with Intellectual Disability Services.
48 Regarding matters upon which Dr Zimmerman was specifically asked to comment, testing revealed a result suggestive of a mild intellectual disability. Those with mild intellectual disabilities, she opined, were frequently gullible socially, easily manipulated, and their social judgements could be immature. That fitted your sense of being manipulated and used by others in prison. Those with mild intellectual disabilities also typically had problems with writing, arithmetic and other areas. Dr Zimmerman concluded she would be hopeful that with expert assistance you would be able to achieve basic functional literacy. She recommended a full neuropsychological assessment, ideally by ARBIAS, to clarify the nature and extent of any difficulty and guide future interventions.
49 In Dr Zimmerman’s opinion, your presentation was not consistent with a Major Mood Disorder, and there was no evidence of any other psychiatric disability.
50 Turning to the impact of custody upon you, in the opinion of Dr Zimmerman, such would be more difficult for you as a result of your intellectual disability compared with someone without that disadvantage. Things that an inmate without such a disability would take for granted, such as reading and writing letters or complaints, or making canteen accounts, were tasks that you were currently unable to undertake without assistance, needing to rely on the goodwill of other prisoners, as you do not have an assigned worker to assist you.
51 Further, accessing programs, including those aimed at sex offenders, was more difficult for those with a disability. In her opinion, it was vital that specifically tailored programs were made available to you and that you were placed within the prison system where access to such was possible.
52 Turning to your rehabilitation prospects, Dr Zimmerman concluded a neuropsychological assessment by ARBIAS would provide assistance and information in that regard. A disability support worker or staff support worker would assist you to function in the prison, with tasks such as managing money, and the sorts of things you may have had support with from family when in the community. In the opinion of Dr Zimmerman, assistance with you gaining functional literacy should be prioritised. On the ‘positives’, you were engaged in work and art in the prison.
53 Programs offered to sexual offenders, Dr Zimmerman understood, could be provided by Corrections Victoria SOATS program, catering for those with disabilities. I urge you to seek them out and/or take them up if offered. In her opinion, it was crucial this was made available to you in prison so that you would not be placed at a disadvantage as a result of your disability. I agree.
54 Dr Zimmerman also noted you described significant neuropsychological symptoms following a neck injury, and in her opinion there should be appropriate management of that as a matter of urgency.
55 There were also two psychological assessment and court reports, prepared by David Ball, dated 17 and 18 June 2015, before me. I have previously referred to those in detail, as I said, in my sentencing remarks of 2015 and will not repeat them here. As I have said, my sentencing remarks of 2015 should be read in conjunction with these sentencing remarks.
56 I was also referred to an earlier report of Dr Simon Kennedy, Clinical and Forensic Psychologist, dated 30 May 2012, prepared at the request of your then instructing solicitors. At the time of that report you were pleading guilty to the subsequent sexual offending, to which I have previously referred.
57 Dr Kennedy described you as ‘simple’, with a very poor memory, therefore a very poor historian, probably functioning in the intellectual disability range.
58 From the age of 16 onwards, you went from friend to friend for several years until you developed a relationship with Christine, and you were together for fifteen years with four children from that relationship. You had subsequently been with Lauren, and at the time of the report, you had two children together. At that time, 1 and 2 years of age.
59 You had not worked to any significant degree, and whilst attending Year 10, did not pass any of the year levels because of your intellectual disability.
60 In New South Wales you worked in a disability workshop for a time, marrying Lauren in 2012.
61 Following testing, Dr Kennedy concluded you had an intellectual functioning in the extremely low range of intellectual abilities, at the lower end of the mildly intellectually disabled range. It was likely, under stress, that you would be functioning lower.
62 Using the Sexual Offending Risk Assessment Tool, you were rated, at the very least, in the low to moderate range for sexual offending. The main factors relevant to your risks were being a victim of child abuse yourself, having an intellectual disability, and also the presence of a sexual offence. Your intellectual disability had significant impact on other aspects of your life, such as employment.
63 In the context of that offending, your intellectual disability affected your ability to understand the wrongfulness of your actions and to make appropriate decisions and judgements, and as such caused your offending behaviour. You continued to suffer from an intellectual disability, and it was likely imprisonment would be more difficult for you than a person not suffering that condition. With the appropriate interventions referred to at that stage, your chances of re-offending would be reduced markedly.
64 Most recently I received a report from Dr Michael Takagi, Clinical Neuropsychologist, dated 6 December 2017. This assessment, in part, was sought as a result of the recommendation by Dr Zimmerman, and I have previously referred to her report.
65 Further details were provided in his report regarding your background and history, much of which was contained in other reports. Reference was made to you, at age 5, being hospitalised for asthma and it being suspected you had sustained an Acquired Brain Injury (ABI) around that time. It was unclear, however, whether the ABI was the result of asthma or alleged assaults by your stepfather upon you.
66 The relationship between your mother and stepfather ended when you were in Year 9 and the abuse reportedly stopped. Your mother, however, abandoned you in Year 10, and during that time you were intermittently homeless and supported by friends.
67 You had difficulty providing specific details about your medical history. Apparently Dr Takagi sought medical material from New South Wales, however received no response to his requests.
68 From Dr Takagi’s interview with your biological father, he confirmed much of your history of violence by your stepfather, and also that you had been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and learning difficulties as a child.
69 I was told of an incident earlier this year, when you were being transported between prisons (or prison to Court), when you struck your head as you entered the van. You required an x-ray, which revealed damage to your vertebrae. You said you continued to experience chronic neck pain and were awaiting treatment, which might ultimately involve surgery. I discussed that with Ms Clark. It seems there is no further update regarding treatment planned, although you do suffer with significant pain.
70 You currently reported frequent low mood, mostly due to the constant neck pain, the breakdown in the relationship with your wife, social isolation and lack of support within prison.
71 Your overall cognitive capabilities placed you within the borderline range of cognitive abilities. You performed within the extremely low range on measures of verbal ability, and average range on measures of non-verbal abilities regarding general intellectual functioning.
72 Turning to Dr Takagi’s summary and opinion.
73 Regarding your intellectual disability, you performed within the extremely low range on multiple measures of intellectual functioning. You are cognitively and functionally impaired. In custody, you were likely to encounter greater hardship because of your cognitive and functional difficulties. You were vulnerable to being taken advantage of by other inmates and your reliance upon them to assist you with personal tasks also made you vulnerable to exploitation and manipulation.
74 In addition, he anticipated accessing programs within the prison would be more difficult for you, and such programs would need to be modified considerably for you to derive any benefit.
75 Consistent with the conclusions of Dr Zimmerman, you were at risk of developing a mood disorder if you continued to feel unsupported and isolated.
76 Your current neck injury and associated pain would also likely have a significant and negative impact on your cognitive functioning. Chronic pain would further exacerbate your already compromised cognitive abilities, making it more difficult for you to function within the prison environment.
77 Regarding the presence, or otherwise, of an ABI, this was unable to be confirmed, although your cognitive profile, reported history, and functional difficulties, were consistent with an ABI.
78 From a neuropsychological perspective, any programs designed to help your rehabilitation would need to be modified to address your cognitive and functional impairments and you should be enrolled in programs and services for prisoners with ABI. Regarding the likelihood you would re-offend, ultimately, he concluded an assessment from a forensic psychologist was recommended to thoroughly address that question.
79 Consistent with my conclusion regarding the applicability of R v Verdins & Ors[8] in 2015, I remain of the opinion that all principles in Verdins apply when now sentencing you.
[8] (2007) 16 VR 269
80 Ms Clark, who appeared on your behalf, also provided a written outline of submissions for your plea hearing, in which she conceded the only appropriate sentence was a term of imprisonment and that, in my opinion, was an appropriate concession.
81 The issue, at sentence, was the structure of your sentence including application of the principles of totality. This was discussed at length with both Ms Clark and Ms MacDougall, who appeared on behalf of the prosecution, and the transcript will reveal that discussion.
82 I am very much aware you have faced trial on these two charges on three separate occasions, and Ms Clark, in her written submissions, detailed that chronology.
83 On 26 June 2015, as previously stated, I sentenced you to a total effective sentence of 4 years and 7 months’ imprisonment, with a minimum of 2 years and 9 months. Pre-sentence detention of 127 days was declared. But for the two charges currently before me, you were eligible for consideration for your release on parole on 19 November 2017. However, as these charges were outstanding, preparations for your release were not proceeded with during your non-parole period.
84 Ms Clark submitted the sentence imposed on these two charges should have regard to the principle of totality and specifically, the lapse of time between sentence in 2015 and today, requires modification of the sentences imposed and orders for cumulation than might otherwise have been imposed to address the principle of totality.
85 I discussed her submissions with Ms MacDougall, who obtained instructions from a Crown Prosecutor. Ms MacDougall stated, “I should sentence appropriately in accordance with the circumstances. That the Director did not appeal the last sentence. I should have regard to the fact these two charges are of an arguably more serious nature of committing the same offence (incest). Regarding totality, the lapse in time required some modification of sentence and some order for cumulation, and a new non-parole period being set.”
86 Turning to totality and the serious sexual offender provisions. It was conceded, appropriately, that you fell to be sentenced as a serious sexual offender on the two charges before me. Specifically addressing s.6 and s.6E and totality, Ms Clark referred to this being an ‘unusual’ case, with separate sentences to be imposed relating to the same complainant that were originally on the first trial indictment, but are now before me for sentence two and a half years later. I agree.
87 When assessing the gravity of your offending, Ms Clark conceded the offending was serious, involving the breach of trust of your daughter and your former wife. Whilst acknowledging, she said, that there was penile penetration and ejaculation in relation to Charge 1, she submitted there was no aggravating feature of pregnancy. That is so, however, Ms Clark conceded Khem was applicable and an aggravating feature of Charge 1.
88 Referring to DPP v Dalgliesh[9], Ms Clark referred to the central proposition in that decision being that current sentencing practices were not decisive in determining an appropriate sentence. Sentencing practices were not the controlling factor.
[9] [2017] HCA 41
89 Yours was, however, she submitted and I agree, a somewhat ‘unusual’ case in that the charges for which you were sentenced on 26 June 2015 included a charge of incest and the sentence imposed on it was 3 years. She urged the earlier sentence I had imposed on that charge was the most comparable case for guidance and to sentence accordingly would meet the sentencing purposes of protection of the community, punishment, denunciation, general and specific deterrence, as well as having regard to other sentencing factors, including the applicability of Verdins and your prospects of rehabilitation.
90 I discussed with Ms Clark features of your offending relevant to the two charges of incest now before me, which would warrant a sentence greater than that imposed on the incest charge upon which you were sentenced in 2015 and I did not understand Ms Clark to disagree with that analysis.
91 Turning to your personal details, she referred to your background again, and I refer again to my reasons for sentence on 26 June 2015 and adopted those during the course of this plea hearing. However, since you have been in prison, your wife, Lauren, and the children had ceased visits (except Alice). Your father and stepmother had, I was told, maintained regular contact and visited when they can, however they live interstate. Ms Clark confirmed that ongoing support, despite them being unable to attend your plea hearing.
92 Your daughter, Alice, visits when she is able, and provided a letter of support. Your younger children were not permitted to visit by the authorities.
93 Regarding your intellectual impairment, Ms Clark submitted the application of the principles in Verdins from my previous sentence should continue to apply, and as I have said, I agree.
94 Regarding the most recent report of Dr Tagaki, and other material before me to which I have previously referred and relied upon during the course of your plea hearing, this she submitted confirmed you would find imprisonment more burdensome than a prisoner who did not have an intellectual disability. You were reliant upon other prisoners to understand written information and to respond to written information or undertake written communications.
95 You were more reliant on telephone communications, however were limited in that regard by your financial resources. Your intellectual disability impacted upon your ability to participate in programs, although I would have thought you should be able to be accommodated. Programs should be able to be found for you in my opinion.
96 There are a lot of prisoners with intellectual disabilities and I am sure this issue will have arisen previously. It is my understanding appropriate programs are available, and if not then that should be addressed by Corrections. Ultimately I can only suggest, of course, not mandate or enforce that recommendation.
97 Turning to your physical health. Regarding the incident in the prison van, you had since that time, she said, experienced problems working on assembly, holding onto items. You said you have had x-rays and been told you have an injury to C1-2, which needed examination by a neurosurgeon to assess treatment options and whether surgery was required.
98 Ms Clark submitted your prospects of rehabilitation should be viewed as good, although I have concerns about that, given you maintain you did not offend regarding Lauren, and your subsequent offending dealt with by Judge Montgomery of this Court in 2012. I am conscious you have not offended between the subsequent offending and the present.
99 Ms Clark relied upon you being a compliant prisoner, and that you are consistently working whilst in prison, and participated in Koori art classes.
100 You continued to enjoy the support of your father and stepmother, and daughter, Alice, who wrote on 4 December 2017 that she visits you in custody to support you, and she thought it had helped you to know she was able to visit.
101 Ms Clark said that Dr Zimmerman stated the key to your rehabilitation and reduction of risk was clarifying your intellectual disability by an ARBIAS assessment which would enable intervention and supports to be tailored to your needs.
102 It was hoped programs in prison would be modified to address your impairments. Ms Clark submitted the recent ARBIAS assessment should assist those responsible for your welfare and treatment in prison and I endorse that.
103 Regarding your rehabilitation prospects, I have at best guarded optimism for the reasons previously stated. Addressing your offending behaviour by enabling you to participate in appropriate courses will obviously assist your rehabilitation. When sentencing, however, I must seek to maximise your prospects of rehabilitation as they may be.
104 I discussed with counsel serious sexual offender provisions, specifically s.6D and s.6E Sentencing Act 1991. In that regard I note authorities including RHMcL v R[10] and more recently in DPP v Hopson[11], and Matheas v The Queen[12].
[10] (2000) 174 ALR 1
[11] [2016] VSCA 303 [48]-[52]
[12] [2017] VSCA 330 [46]-[50]
105 In Matheas, Tate JA referring to Gordon v the Queen[13] and DPP v Bales[14]:
“(when s6E is enlivened) …there is a need to ensure that the totality principle is not applied in a manner inconsistent with the legislation purpose of s6E, that is, full effect is not to be given to the totality principle as though s6E ‘was not on the statute book’. The weight to be given to the totality principle is to be moderated to ensure consistencies with legislative purpose.” [50]
[13] [2013] VSCA 343
[14] [2015] VSCA 261
106 In my opinion, the principle of totality still has some applicability and in that regard I also note the particular circumstances in which you now fall to be sentenced, that is, approximately two and a half years thereabouts after your first trial and the sentence I previously imposed in 2015 in particular, on that charge of incest.
107 I also discussed with counsel the recent decision of DPP v Dalgleish and R v Kilic[15]. But those decisions counsel will note, were delivered after the first trial and arguably have addressed (put very simply) increased sentences for similar offending to yours.
[15] [2016] HCA 48
108 You are currently subject to the Sex Offenders Registration Act 2004 for life. Whilst the current two charges before me render the same Act applicable, as I have already so ordered, I will not make that order again.
109 Two recently sworn victim impact statements were before me. One from Emma and another from her mother Christine. Both had previously also provided victim statements at your 2015 plea hearing, and I have read also those two recent statements. They are eloquent and it is difficult to do justice to them in these brief sentencing remarks. There is no doubt the impact of your offending has been ongoing and profound. I am conscious, however, the time taken for final determination of these two charges was simply not in your control.
110 There was a statement of Emma sworn 14 August 2017. As a result of your offending she felt depressed and avoided going out in public. She had difficulty trusting males. She and her mother argued as Emma did not like speaking about your offending. She felt no one understood her stress and fear. She had nightmares, sleepless nights, and she often did not eat. She had difficulty wanting to work as she felt depressed, and she suffered with high anxiety levels.
111 She lost her job as she took too many days off because she was depressed as a result of your offending.
112 She sees a psychologist monthly to help her move on from your offending, and that was also a financial burden.
113 Your offending also impacted upon her study. She no longer felt safe and was scared she would be hurt again.
114 A statement of Christine Banks (mother of Emma) sworn 14 August 2017. Since her first victim impact statement her emotions had been on a constant roller coaster. Your offending had impacted on Alice also, as described in the statement. Contact between Alice and Emma was rare.
115 The various trials had been difficult to live through and the time taken by the Court process meant she was not able to see her father before he passed away in April 2017. I note, however, the delay in concluding the trials is not of your doing.
116 She continued to be depressed. She had difficulty sleeping and often had nightmares. She wanted to enjoy life again.
117 I have previously referred to the notion of social rehabilitation on my sentencing remarks in June 2015 and the same applies now.
118 The effects upon a victim are a relevant sentencing consideration (s.5 Sentencing Act 1991), I am conscious as I stated also in 2015, I must not allow the effects upon a victim to swamp the sentencing process.
119 Ms MacDougall submitted the only appropriate disposition was a term of imprisonment.
120 As well as matters personal to you, including your prospects of rehabilitation, I must also take into account matters such as general deterrence which is of considerable importance in a case such as this.
121 I have, in my sentencing remarks of 2015, referred to the need for general deterrence when sentencing for sexual offending against children. I repeat the authorities to which I then referred and refer also to the recent decision of Dalgliesh.
122 I must also consider the need for specific deterrence when sentencing you.
123 I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending. This concerns me albeit I am aware you did not offend between the subsequent offending dealt with by his Honour Judge Montgomery and your recent remand and sentence. You do, however, need to address your offending behaviour to reduce the risk of your sexually re-offending.
124 I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
125 In sentencing you I have taken into account the sentence I imposed in 2015 on the charge of incest and the principle of totality (mindful of RHMcL), including the current sentence you are undergoing and the impact of that sentence upon the sentence I impose today.
126 In brief, I might add that I am, as I have said, conscious of the recent decisions of Dalgleish, but it would seem to me that I must, and do, take into account the previous sentence which was imposed pre-Dalgleish. It maybe that the sentence I impose here, given the unusual nature of this sentence occurring two and a half years after the original sentence was imposed may mean that this authority is not an appropriate precedent in the future for other offending by others involving in particular the offence of incest. In other words, there are particular matters in this case that warrant the sentence that I impose today, which might otherwise be regarded as a lenient sentence, if that makes sense.
127 Of the remaining head sentence imposed in 2015, both counsel agree, I discussed that with counsel today, and there is approximately 1 year 9 months and 6 days remaining.
128 I therefore sentence you as follows.
129 On Charge 1, you are convicted and sentenced to 3 years and 6 months’ imprisonment.
130 On Charge 2, you are convicted and sentenced to 3 years’ imprisonment.
131 Charge 1 is the base sentence, and I direct that 2 years and 3 months of Charge 2 be served concurrently and 9 months cumulatively upon Charge 1.
132 That results in a total effective sentence of 4 years and 3 months’ imprisonment.
133 I direct that 1 year and 9 months of that total effective sentence be served concurrently with the head sentence I imposed on 26 June 2015.
134 I further direct that you serve a period of 20 months from today’s date (21 December 2017) before you are eligible for parole.
135 As you proceeded to trial s6AAA Sentencing Act 1991 does not apply and I just state that for completeness.
136 Pursuant to s.6F Sentencing Act 1991 you are sentenced as a serious sexual offender on Charges 1 and 2, and I direct this be entered into the records of the Court.
137 No pre-sentence detention is declared pursuant to s18(4) Sentencing Act 1991, and we will come back to whether there are any other orders.
138 Now, I want to make sure that is all very clear. The sentences I have imposed on the two charges of incest, reflect the sentence if I could put it this way, that was imposed in 2015, and not necessarily consistent with Dalgleish which was subsequent, but that is the sentence I have imposed. Now I have made it concurrent of that 4 years and 3 months imprisonment, 1 year and 9 months is concurrent. Yes? Does that make sense, I just want you to follow this with the current head sentence. So that means, if you do the maths, I have given him 4 year and 3 months, that is 51 months, and you will work that out, it is 4 years and 1 year and 9 months is 21 months is it? Twelve plus nine is 21.
139 MS MacDOUGALL: 21 months, Your Honour.
140 HER HONOUR: So that means the head sentence is another 30 months out, if that makes sense, which works out to 2 years and 6 months. Should be, roughly? Follow that? And the non-parole period is 20 months effective from today being 21 December. So he has another 20 months to do before he is eligible for parole but the head sentence extends out 2 years and 6 months. You may not appreciate the figures, but 1 year and 9 months is concurrent with the 1 year and 9 months he currently has to go. Make sense Ms MacDougall.
141 MS MacDOUGALL: I am just trying to work out the maths, Your Honour.
142 HER HONOUR: No, that's all right. He's got 1 year and 9 months and 6 days, put the 6 days to one side.
143 MS MacDOUGALL: Yes.
144 HER HONOUR: I have the head sentence I have now imposed, 1 year and 9 month of that is concurrent with the 1 year and 9 months that is left.
145 MS MacDOUGALL: Yes.
146 HER HONOUR: Okay, that's the plan, so there will still be some time beyond that as the head sentence.
147 MS MacDOUGALL: Yes.
148 HER HONOUR: The non-parole period has already finished, therefore I set a new non-parole period of 20 months.
149 MS MacDOUGALL: From today, yes.
150 HER HONOUR: From today's date, yes, being 21 December 2017.
151 MS MacDOUGALL: Yes, Your Honour.
152 HER HONOUR: Okay. As I've said, again the sentence I've imposed is perhaps lenient in light of Dalgleish, but I am particularly mindful of the earlier trial and that this is now only being determined as a result of jury verdicts at that, and along the way, I am hoping that makes some sense. Now, were there any other orders? I don't think there were, but I am just checking, no DNA, no sorry, not DNA, no blood, none of that.
153 MS MacDOUGALL: No ancillary or consequential orders sought, Your Honour.
154 HER HONOUR: No all right. So does that - is that clear to you Ms Vermezovic? Do you understand that?
155 MS VERMEZOVIC: Yes, yes, Your Honour.
156 HER HONOUR: All right, and to you Ms MacDougall, before we leave the court. No PSD for this matter.
157 MS MacDOUGALL: No PSD, no Your Honour.
158 HER HONOUR: No that's right, I've said that, yes, so does that make - are you right with that? Anything to say?
159 MS MacDOUGALL: Excuse me a moment.
160 HER HONOUR: Only about the structure, I'm not asking whether you think it's a right sentence or not.
161 MS MacDOUGALL: I wasn't going to ask that question, Your Honour. No, I have nothing to add, Your Honour.
162 HER HONOUR: Excellent, all right, well thank you both. All right, Mr Spence, that will hopefully be explained by your solicitor. There is some concurrency there because of the nature of the hearings being drawn out over two and a half years - that's my term, drawn-out - so there's some, I've taken that into account. But anyway, you'll be right with explaining that?
163 MS VERMEZOVIC: Yes, Your Honour.
164 HER HONOUR: Excellent, thank you. You will now have to leave. All right, thanks Mr Spence. Yes, excellent, thank you.
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