Director of Public Prosecutions v Stafford (a pseudonym)
[2018] VCC 877
•8 June 2018
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DONALD STAFFORD (a pseudonym) |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Ballarat [sitting in Melbourne] | |
DATE OF PLEA HEARING: | 28 May 2018 | |
DATE OF SENTENCE: | 8 June 2018 | |
CASE MAY BE CITED AS: | DPP v Stafford (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 877 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords:
Legislation Cited: Sex Offenders Registration Act 2004; Sentencing Act 1991; Crimes Act 1958
Cases Cited: R v RLP [2009] VSCA 271; TRG v R [2011] VSCA 337
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms G. Munro | Office of Public Prosecutions |
| For the Accused | Ms S. Maranis | GTC Lawyers |
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 Donald Stafford[1], you have pleaded guilty to one charge of indecent act with a child under 16. This is a course of conduct charge. This crime arises out of events which took place between yourself and Bethany Stafford[2] between 3 October 2011 and 3 October 2013. The maximum penalty for the offence of indecent act with a child under 16 (course of conduct charge) is ten years’ imprisonment.
[1] Donald Stafford is a pseudonym
[2] Bethany Stafford is a pseudonym
2 It is not necessary for me to recount in great detail the facts of this matter as they are on transcript, the matter having been opened in some detail by the learned prosecutor, consistent with Exhibit A. I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing. It is sufficient for present purposes to simply say the facts in this case are most serious and disturbing.
3 I turn to a summary of your offending.
4 Bethany was born in October 2001 and at the time of your offending was between 10 and 12 years of age. She is your granddaughter.
5 At the time of this offending you were 70-72 years of age and you are 76 at sentence. You were living in Bacchus Marsh and a market gardener who owned and operated the business with two of your three sons. One of your sons, Gary[3], is Bethany’s father.
[3] Gary is a pseudonym
6 On 22 March 2016 police received information from Bethany’s mother, who said she had been speaking to her about the family going away over Easter and had asked Bethany if she would like to stay with you and your wife. Bethany became upset, and when questioned by her mother, disclosed you had been sexually abusing her.
7 She told her mother that you would say things like ‘chocolate for a look’ and that you would then pull her pants down and rub her vagina.
8 The following day, 23 March 2016, police spoke with Bethany, who stated you had sexually assaulted her for years, and that it had stopped when she was 11 or 12. She recalled it stopped when she was in Grade 5 or 6.
9 Bethany stated that you would pull her pants down and say ‘chocolate for a look’, then rub her vagina, however, she did not believe that you penetrated her vagina.
10 She did not want to make a statement (VARE) at that time.
11 An intervention order was subsequently applied for and obtained by police in relation to this matter. The intervention order was issued at the Ballarat Magistrates' Court on 12 April 2016 to expire 2 October 2019.
12 On 5 December 2016 Bethany provided a statement in a VARE in relation to the allegations she had made in March 2016.
13 I turn to a brief summary of your offending.
14 Bethany recalled she spent time at your farm when she was young when her father worked at the property and would take her there to be looked after while he worked.
15 She recalled you would look after her as she was your favourite grandchild, and that her grandmother would be teaching in the art gallery in a building next to the main house.
16 Between 3 October 2011 and 3 October 2013, you rubbed Bethany’s vagina during periods when you were looking after her at your property. She described that as ‘many times’, although she specifically recalled three incidents.
17 Bethany recalled that when she was 11 and 12, she had been at your home sitting in the lounge room on the couch. She asked you if she could have a piece of chocolate and you responded ‘Well can I have a look?’.
18 Bethany then walked to your bedroom, where she lay across the bed on her back with her legs dangling over the edge. You put your glasses on, knelt between her legs, pulled her pants down and looked at her vagina. You then rubbed her vagina. You stopped when Bethany told you that she thought she heard someone coming. That was the last occasion you offended against her.
19 Bethany recalled a second instance of your offending where ‘the exact same thing’ happened when she was ‘about the same age as the other one’.
20 She also recalled a third instance of this type of offending around the same age as the two first instances that she could recall.
21 The second and third instances recalled by her occurred in your spare room.
22 While your offending occurred between 3 October 2011 and 3 October 2013, the three instances that Bethany recalled occurred within the same 12 month period.
23 The charged offending occurred in the context of you also touching Bethany’s breasts outside her clothing while she sat on your lap, and slapping her on the bottom, again outside her clothing. That occurred when she was at your property when she was between the ages of 11 and 14.
24 I discussed with your counsel the aggravating features of your offending, specifically the breach of trust not only of Bethany but also the trust of her parents. Also that you offered chocolates and lollies to Bethany to encourage her participation in your offending. There was also an element of pre-planning in that you offended when your wife was not present at the house.
25 On 31 January 2017 you attended Ballarat Police Station through arrangement with your solicitor and were interviewed. You made a no comment interview in respect to the allegations which I stress was your right.
26 I was told by Ms Cannon, who appeared on your behalf, that at your first attendance with your solicitors regarding this offending you indicated your intention to plead guilty to it.
27 I turn then to a chronology. The VARE with Bethany was conducted on 5 December 2016 and record of interview with you on 31 January 2017. Charges were filed on 6 June 2017, and on 3 July 2017 there was a filing hearing at Ballarat Magistrates' Court.
28 On 31 August 2017 at a committal mention, the matter was adjourned to enable plea negotiations to continue.
29 On 14 September 2017 the matter resolved to a plea of guilty to three specific incidents on the understanding that the indictment, as it is currently worded, contained one course of conduct charge comprising those three instances.
30 The matter was listed for a plea in the Ballarat County Court in the circuit commencing 27 November 2017, however, due to circuit listings was now heard before me on 29 May 2018. I accept that you have been waiting for this matter to be finalised with the likely disposition of a term of imprisonment hanging over your head for some time.
31 The victim of your offending has suffered considerably in the manner described in the victim impact statement and I will return to this later in these sentencing remarks.
32 You have pleaded guilty to this charge and you are entitled to have that fact taken into account in your favour and I do so. The community has, by your plea of guilty, been spared the time and cost of a trial and witnesses have been spared the ordeal of having to give evidence upon your trial. Further, I take into account in your favour, you intimated early your intention to plead guilty to this charge after discussions between those representing you and the prosecution in an attempt to resolve this to a suitable indictment. The prosecution conceded, and I accept, your plea of guilty would entitle you to a reduction in sentence as did the early stage at which it was entered.
33 I accept your plea of guilty indicates remorse by you, although have concerns regarding the overall extent of your remorse based on the report of Dr Barth, to which I shall shortly refer.
34 You also come to this court without any prior criminal history and therefore as a person of prior good character, nor is there anything subsequent or pending alleged.
35 Pursuant to clause 34 Schedule 2 Sex Offenders Registration Act 2004, the offence of indecent act with a child under 16 at the time of this offending was a class 2 offence for the purposes of that Act and, accordingly, pursuant to s.34(1)(a) of the Act you must comply with the reporting obligations of that Act for 8 years. Your counsel, Ms Cannon, agreed such classification and duration applied to you.
36 There were three victim impact statements before me and each were read into the transcript.
37 Ms Cannon raised concerns about the admissibility of parts of the statement of Andrea Stafford[4] (Bethany’s mother). I am, of course, conscious that I must only take into account relevant material in such statements, and I have done so.
[4] Andrea Stafford is a pseudonym
38 There was a victim impact statement from Bethany, sworn 26 October 2017. She described being paranoid of older males wanting to hurt her or something. She felt uncomfortable when she was walking, or somewhere alone. She always seemed to be on the watch for seeing you in public. She felt uncomfortable seeing her grandma, as she made her feel wrong.
39 The family felt they had to move away so they would not bump into you or your wife. Bethany had to start at a new school and it was scary. She wanted to have her friends. There were a lot of family fights after she came out with what you had done to her. She felt horrible for not coming out sooner. The family did not believe her and thought she was making it up. All she tried to do was ignore and pretend nothing happened so she would not cry, and felt sick when you were offending against her.
40 There was a victim impact statement from Bethany’s father, your son Gary Stafford. He described that as a result of your offending, having invested 25 years in the family business, he had to walk away from the farming property. He felt he had failed to protect his daughter and failed to emotionally support his wife in the year that followed the allegations. The family had difficulty functioning at work and at home. They were currently moving house and towns to get away from his parents, i.e. you and your wife. There had been emotional stress on the whole family over the past 18 months, which was ongoing. Gary thought he had become withdrawn from family and friends over the past 18 months.
41 There was a victim impact statement from Andrea Stafford, Bethany’s mother, in which she referred to having to relocate to another town and a new school for Bethany. She said your offending of her daughter had affected herself and her family emotionally, psychologically and financially. Andrea was made to feel guilty, felt very angry, unsupported and aggrieved for what had happened. She was made to feel guilty for your offending.
42 She was angry that you had done that to her daughter as she trusted you. Bethany was your own granddaughter, an innocent child.
43 There was a long period of time when Andrea felt incredibly alone and unsupported after she reported you to the police. She referred to the difficulties that nearly ended her marriage as a result of your offending and Bethany’s disclosure of it. As a mother it broke her heart in that although Bethany knew what had been occurring was not her fault, she still sometimes said that she should not have said anything.
44 Your offending against her daughter had left Andrea with poor sleep patterns and trouble concentrating at work. She felt guilty she had entrusted her daughter to your care. Neither she or Bethany felt safe or comfortable living in Bacchus Marsh anymore, fearing they would see you. Her trust in people had completely gone.
45 They were relocating to another town to live without fear of running into you and your wife.
46 Bethany had now enrolled in another school which brought its own challenges.
47 There had been a financial cost relocating to another town, a change of school and the burden of changing uniforms and so on. Your offending had a strong negative impact on her relationships, security and emotional well‑being.
48 Also relevant is the notion of social rehabilitation. A number of authorities have referred to the effects upon a victim of sexual offending, including DPP v Toomey[5], in which his Honour Justice Vincent referred to social rehabilitation citing DPP v DJK[6], allowing, of course, for the differences in factual circumstances to the present case His Honour said:
“… With respect to those statements I repeat comments I have made as a sentencing judge on more than one occasion. They constitute a reminder of what might be described as the human impact of crime. They draw to the attention of the judge who would of necessity, have to consider the possible and probable consequences of criminal behaviour, not only its significance to society in general, but the actual effect of a specific crime upon those who have been intimately affected by it. The statements provide an opportunity for those whose lives are often tragically altered by criminal behaviour to draw to the court's attention the damage and sense of anguish which has been created and which can often be of very long duration. For practical purposes, they may provide the only such opportunity. Obviously the statements must be approached with care and understanding. It is not to be expected that victims will be familiar with or even attribute significance to the many considerations to which a sentencing judge must have regard in the determination of a just sentence in the particular case. Nor would it normally be reasonable or practicable for a sentencing judge to explore the accuracy of the assertions made. Nevertheless, there has been an increasing level of appreciation by the courts of the value of victim impact statements. In my view, they play an important role with respect to the aspect of the criminal law to which reference is not often made. They play their part in achieving what might be termed social and individual rehabilitation. Rehabilitation, in this sense, is not perceived from the perspective of the offender, but from that of those persons who have sustained loss and damage by reason of the commission of an offence.”
[5] [2006] VSCA 60
[6] [2003] VSCA 109
49 The effects upon a victim are a relevant sentencing consideration (see s5 Sentencing Act 1991). I am conscious, however, that I must not allow the effects upon a victim to swamp the sentencing process.
50 Your counsel, Ms Cannon, provided a written outline of submissions and addressed them during the course of the plea hearing.
51 She conceded sexual offending against children was serious, involved a betrayal of trust, as here, and often had severe consequences for victims, including psychological trauma. She is correct.
52 Ms Cannon conceded aggravating features of your offending were that it was a breach of trust, not only of your granddaughter but also of your son and his wife, the mother and father of Bethany. Also that you offered Bethany chocolates/lollies.
53 Turning to your personal circumstances, Ms Cannon submitted that prior to this offending you lived a simple and productive life, and devoted almost all your energy to your work and family.
54 You grew up in Bacchus Marsh on your parents’ farm and had lived locally for your entire life. You left school at the end of Form 1, when you were 14, and had very poor literacy skills. You relied on your wife for assistance with reading and writing.
55 After leaving school you stayed at home and worked on your parents' farm. You met your wife when she was 17 and you were 19.
56 You eventually bought your own farm and established your market garden business, where you worked until you retired. There are three sons of that marriage.
57 You and your wife no longer have any contact with your son, Gary, the father of Bethany, and limited contact with your youngest son. While there is still contact between yourself and your eldest son, it is not without some strain.
58 Your wife’s diagnosis of breast cancer coincided with your offending.
59 Ms Cannon referred to a report of Dr Matthew Barth, Psychologist, who assessed you on 20 October 2017. At the time of that interview you were 76. Further details were provided regarding your background and history, which Dr Barth ultimately described as "unremarkable". You denied any history of childhood sexual abuse and denied any paraphilic interest or fantasy.
60 You described the marriage to your wife in positive terms and described your wife’s diagnosis with breast cancer as causing significant tension and anxiety. You advised your wife’s condition was currently in remission.
61 You expressed shame for the impact of your offending on your wife’s mental health. She, however, remained supportive of you. You were a moderate drinker and had never used illicit substances. Dr Barth was aware that you did not have any prior criminal history or involvement with the criminal justice system, as am I.
62 When discussing the charges, you were very emotional and had difficulty articulating the motivations for your offending. You said you had always felt a very close bond to Bethany and you enjoyed the affection she showed you. You said you began to interpret her affection towards you in a more sexualised manner as she grew older, which culminated in this offending.
63 You were tearful when discussing your offending and expressed remorse for it, stating you felt sorry for what you had done, having hurt the little girl that you loved. You wanted to apologise to the whole family.
64 Your mental health, Dr Barth concluded, was impacted upon by your distress regarding the current proceeding. You felt shame and guilt for your offending. In the opinion of Dr Barth, you currently warranted a diagnosis of adjustment disorder with mixed anxiety and depressed mood.
65 Testing revealed no deficits in your ability to appreciate the wrongfulness of your behaviour.
66 Regarding your interaction with Bethany, in the opinion of Dr Barth you had considerable difficulty recognising and enforcing appropriate interpersonal boundaries which, he said, remained concerning. You had considerable difficulty delineating between healthy familial affection with Bethany on the one hand and ‘romantic erotic feelings for her’ on the other. At the time of interview you still had very limited insight into such matters.
67 In that context, you developed a grossly inappropriate and dysfunctional sexual interest in your granddaughter when you were lacking a sense of genuine intimacy in your life. Dr Barth suggested those features of your sexual adjustment should be addressed in specialist sex offender treatment at the earliest opportunity.
68 Turning to assessment of your risk for future sexual offending, Dr Barth utilised the Static-99 and Risk of Sexual Violence Protocol (RSVP) assessment tools.
69 Dr Barth noted a review of the RSVP tool indicated a slightly high risk of recidivism without treatment. Your overall risk of sexual recidivism fell in the low-moderate risk category.
70 Turning to protective factors that could be identified in your case, Dr Barth suggested participation in specialist sex offender treatment might reduce your risk, also limitations on your access to potential victims. Dr Barth suggested treatment should focus on developing your social skills to improve your ability to communicate your emotional needs more effectively. Any sex offender treatment undertaken, he suggested, should focus on assisting you to gain insight into the factors that motivated your offending and enhance victim empathy.
71 Should you receive a custodial sentence, in the opinion of Dr Barth, you would be a particularly vulnerable prisoner, at significant risk of further deterioration in your mood in the immediate aftermath of sentencing and that would need close monitoring by prison mental health staff to prevent impulsive acts of self harm.
72 I am conscious of this. Whilst Ms Cannon was not relying upon the principles in R v Verdins & Ors[7], I can and do take your age and vulnerabilities into account, as referred to by Dr Barth, consistent with general sentencing principles.
[7] (2007) 16 VR 269
73 I note you otherwise appear to be in reasonably good health, physically and mentally, consistent with your age.
74 There was also a report from Geoffrey Burrows, Psychologist, dated 30 April 2018. You had been participating in a sex offender treatment program with him. You voluntarily attended his office to participate in that program and had attended on nine occasions, commencing 13 December 2017, the most recent 26 April 2018.
75 You cooperated in an engaged manner throughout the program and expressed your desire to continue with treatment.
76 Treatment focused on assisting you to gain insight into the underlying motivations for your offending behaviour. You described how your relationship with Bethany functioned to meet some of your emotional and intimacy related needs, otherwise unmet. That you subsequently confused feelings of love for your granddaughter with sexual attraction.
77 To enhance victim empathy, treatment had also involved psycho-education regarding the requirements of consent and the harmful impact of engaging in sexual behaviour with underage females. Following that treatment, you were able to display an improved understanding that your granddaughter was not capable of providing consent and that you had significantly betrayed her trust.
78 You understood the significant distress caused to your granddaughter and the culpability of your behaviour.
79 Also before me were a number of letters, firstly from you, dated 27 May 2018. In that letter you expressed your deep remorse and shame for your disgraceful behaviour regarding Bethany. You said you had no excuse for your offending and were embarrassed by it. You said it was humiliating for you to see the hurt and pain you had caused, not only to Bethany, Gary and Andrea, but also to your wife and other members of your family. You were aware you had hurt them very deeply, destroyed their trust and previous family relationships.
80 You referred to having attended a psychologist to seek treatment to deal with your offending and, in your opinion, you were never likely to commit this sort of criminal act ever again. You were hopeful that some day before you died you could receive forgiveness from your family, however, you knew that that would be a lot to ask.
81 There was a letter from your wife, dated 27 May 2018. She described she had been married to you for 53 years. She had lived in the local Bacchus Marsh community since she was 10 years of age. She is very keen on art and has achieved art awards for her work. She referred to your work over the years describing you as a tireless worker, working seven days a week for many years.
82 You were a keen golfer since 1981 and to a very high standard with a number of golf trophies. You ceased playing golf in 2012 due to a hip problem. She described being proud of her three sons. She described the difficulty maintaining the family business as a viable proposition in recent years. She and you had become pensioners. There was no income from the farm.
83 Your wife referred to being diagnosed in 2011 with breast cancer.
84 Your wife described that in April 2016, after the hearing of the intervention order and not being aware, at that stage, of all the details of the charges, she was extremely upset and asked you to leave. You became suicidal and she was very concerned for your mental state.
85 In January 2017 you and she moved to another address and described medical conditions that she had which make it difficult coping on her own.
86 Ms Cannon was not relying upon family hardship and exceptional circumstances, however, I accept you will be concerned about how your wife is coping during any term of imprisonment, which would leave you unable to assist her. She described you as remorseful for your offending and for the pain you caused all the family, mostly Gary, Andrea and Bethany.
87 Ms Cannon referred to the family relationships at the moment being seemingly irreparable as the family blamed your wife also for not protecting Bethany. She hoped that one day they would communicate with her and learn to forgive.
88 There was a reference from your sister-in-law, dated 24 September 2017, who has known you for more than 50 years and is the sister of your wife. She described you having previously run a very successful market garden and of the three boys working in that business with you. You were proud of your sons and their children. She found it upsetting and difficult to comprehend the charge you were facing. It was out of character for the person she knew. She and her husband were very supportive of all the family.
89 Turning specifically to your offending, Ms Cannon conceded that while your offending was serious and continued over a period of time, it did not escalate in its nature, and I accept that is so.
90 Ms Cannon submitted it was very unlikely you would find yourself in the future in a position where you would be a similar risk to a child. That as a result of your attendance with Mr Burrows and Dr Barth you had insight now and general remorse.
91 You lamented the lack of contact now with your extended family and described being entirely estranged from your son, Gary.
92 Ms Cannon confirmed you were a hard worker throughout your life. You had limited social skills. Your offending, she submitted, occurred when your wife was unwell with breast cancer.
93 Regarding your relationship, sexual history and this offending behaviour, Ms Cannon referred to the report of Dr Barth, specifically paragraph 13, which I have read.
94 Ms Cannon submitted you responded well to counselling regarding this offending and that your risk of sexually re-offending was low-moderate.
95 Ms Cannon urged that your offending was not violent in nature. Whilst that is true and clearly not offending involving penetrations, care should be taken regarding any submission that ‘there was no violence accompanying the offending’. She said you wanted to apologise to Bethany and her family for your offending.
96 In Dalgliesh, (albeit referrable to very different charges from yours), reference was made to the Sentencing Advisory Council in its recent report on sentencing of offenders for sexual penetration of a child under 12, whilst I stress not your offending, the principle nevertheless remains applicable.
“This characterisation of ‘violence’ as encompassing only non-sexual violence has the consequence of diminishing the equally destructive and terrifying violence inherent in sexual offending against children, which more often takes the form of physical or emotional coercion, or the simple act of being overpowered. It can also have the effect of rendering invisible and irrelevant the extreme physical pain inherent in the act of an adult forcibly penetrating the genitals and anus of a child."
Again I note not your case. Further:
“Moreover, as this Court explained in Clarkson v The Queen[8], the absolute prohibition on sexual activity with a child is founded on a presumption of harm. The significance of violence and harm which such conduct entails cannot be overstated.”
[8] (2011) 32 VR 361
97 Ms Cannon referred to your age, 76 at time of sentence, as being a consideration of the court, and such is the case. In the decision of R v RLP[9], the court referred to age and ill health, the latter not so much your case (paragraphs 32-38 of that decision).
[9] [2009] VSCA 271
98 I also note the decision in TRG v R[10], in which Justice Weinberg JA referred to RLP and the passage from that judgment of Neave and Redlich, JJA, and also Justice Hollingworth AJA.
[10] [2011] VSCA 337
“We approach the conjunction of the appellant’s advanced years and ill health with these propositions in mind.
·The age and health of an offender are relevant to the exercise of the sentencing discretion.
·Old age or ill health are not determinative of the quantum of sentence.
·Depending upon the circumstances, it may be appropriate to impose a minimum term which will have the effect that the offender may well spend the whole of his remaining life in custody.
·It is a weighty consideration that the offender is likely to spend the whole or a very substantial portion of the remainder of their life in custody.
·Other sentencing considerations may be required to surrender some ground to the need to exercise compassion to take account of the real prospect that the offender may not live to be released and that the offender’s ill health will make his or her period of incarceration particularly onerous."
·"Just punishment, proportionality and general and specific deterrence remain primary sentencing considerations in the sentencing disposition notwithstanding the age and ill health of the offender."
·"Old age and ill health do not justify the imposition of an unacceptably inappropriate sentence.” (paragraph 39)
99 Ms Cannon also referred to your lack of prior convictions, early plea of guilty and acceptance of responsibility which, she urged, demonstrated genuine remorse and I accept that is so.
100 I also note, consistent with the reports before me and Ms Cannon’s submissions, that you have not been identified as having underlying paedophilic tendencies. Ms Cannon submitted your early plea of guilty, age, lack of prior history, genuine remorse and attitude towards Bethany and the harm you acknowledge you have caused her, all went towards mitigation of your sentence. I agree.
101 Ms Cannon conceded the only appropriate disposition for your offending was a term of imprisonment with a non parole period.
102 Mr Sharpley, who appeared on behalf of the prosecution, submitted this was serious offending by you and over a considerable period of time. He submitted the prosecution submission was that the only appropriate disposition for your offending was a term of imprisonment and a non-parole period.
103 Turning to your rehabilitation prospects, I accept in part, given your age, but also that you having recently undertaken some counselling to address your sexual offending, your rehabilitation prospects are good. In fixing an appropriate sentence I must seek to maximise your chances of rehabilitation, as they may be.
104 As well as matters personal to you, including your prospects of rehabilitation to which I have just referred, I must also take into account matters such as deterrence, specifically general deterrence which is of considerable importance in a case such as this. This has been stated by the courts over many. many years.
105 The courts have repeatedly referred to the seriousness of sexual offending involving children. See Burnett v R[11], Roosmalen v R[12], Wayland[13], Parente[14] and recently DPP v DJK[15], DPP v CPD[16] and Clarkson v The Queen[17]. This list is by no means exhaustive and further cases have been relatively recently referred to in the decision in Dalgliesh.
[11] (1993) 70 A Crim R 469
[12] (1989) 43 A Crim R 358
[13] 14/9/1992 CCA Victoria
[14] (2004) 10 VR 234
[15] [2003] VSCA 109
[16] [2009] VSCA 114
[17] [2011] VSCA 157
106 There is also the need for specific deterrence when sentencing you. While I note you do not have any prior court appearances or anything subsequent or pending for that matter, your offending occurred over a number of occasions over a protracted period of time.
107 I must also consider the question of protection of members of the community from you and bear in mind the likelihood of your re-offending. In that sense, I am comforted, to an extent, by the report of Dr Barth and his assessment regarding your future risk of sexual offending.
108 I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
109 Specifically regarding the charge before me, s5(2F) Sentencing Act 1991 has application and in the case of Poursanidis v The Queen[18], Justice Weinberg JA referred to course of conduct charges and s5(2F) of the Act.
[18] [2016] VSCA 164
110 I sentence you as follows.
111 On Charge 1, you are convicted and sentenced to 2 years and 6 months’ imprisonment and I direct that you serve a period of 15 months before you are eligible for parole. I have imposed what I regard as a relatively short non‑parole period to reflect all matters in mitigation of sentence and being the minimum time you need to serve in custody.
112 Pursuant to s6AAA Sentencing Act, had you not pleaded guilty to this offending and been found guilty of it by jury verdict, I would have sentenced you to a term of imprisonment of 6 years and set a non-parole period of 4 years.
113 Pursuant to s18(4) Sentencing Act 1991 I declare you have spent 10 days in custody (up to and including yesterday, 7 June 2018), by way of pre-sentence detention and I direct that that be entered into the records of the court.
114 The prosecution made application for a forensic sample pursuant to s464ZF Crimes Act 1958. That was consented to by counsel on your behalf and I make the order in the terms sought. It will be for a saliva sample and I make the order on the basis of the seriousness of this offending. I must advise you that the authorities may use reasonable force in order to obtain that sample.
115 As I have said, you are also subject to the Sex Offender Registration Act 2004 for a period of 8 years, such is mandatory. At the conclusion of this sentence my associate, Ms Jackson, will approach you and ask you to sign for receipt of the paperwork relevant to that register. You are not being asked if you want to be on the register, I have made that order, you are simply being asked to acknowledge your receipt of the paperwork, that is all. Have a seat.
HER HONOUR: Now ten days, correct?
MS MUNRO: Correct.
MS MARANIS: That's correct, Your Honour.
HER HONOUR: Excellent. All right then. You can go back if you want to and explain to him he's simply being asked to sign acknowledging receipt of that paperwork. Thank you both very much.
MS MUNRO: Yes, thank you.
MS MARANIS: As Your Honour pleases. Thank you, Your Honour.
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