Director of Public Prosecutions v Stanczewski ('Stan')
[2019] VCC 2161
•17 December 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-19-01667
Indictment No.K10581262.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JASON MARK STANCZEWSKI ('STAN') |
---
JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 10 December 2019 | |
DATE OF SENTENCE: | 17 December 2019 | |
CASE MAY BE CITED AS: | DPP v Stanczewski ('Stan') | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 2161 | |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW
Catchwords:
Legislation Cited: Criminal Procedure Act 2009; Crimes Act 1958 (Vic); Sentencing Act 1991; Sex Offenders Registration Act 2004.
Cases Cited:R v Jones [2004] VSCA 68; R v Khem (2008) 186 A Crim R 465; R v Renzella [1999] VSCA 85; Clarkson v The Queen (2011) 32 VR 361; Zhao v The Queen [2018] VSCA 267; Stalio v The Queen (2012) 46 VR 426; Carter (a Pseudonym) v The Queen (2018) 272 A Crim R 170; R v Verdins & Ors (2007) 16 VR 269; Wheldon v The Queen (2011) 31 VR 297; R v Black [2007] VSCA 82.
Sentence: Total effective sentence of 5 years' and 11 months' imprisonment, non-parole period of 3 years and 11 months.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J. Singh | Solicitor for the Office of Public Prosecutions |
| For the Offender | Ms K. Blair | Pica Criminal 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 victims and family or witnesses.
HER HONOUR:
1 Jason Stanczewski, you have pleaded guilty to two charges of sexual penetration of a child under the age of 16 on Indictment K10581262.1.
2 Charge 1 is a rolled-up charge referable to two acts of offending and as such, R v Jones[1] applies.
[1][2004] VSCA 68.
3 You have also agreed to me hearing, pursuant to s.145 of the Criminal Procedure Act 2009, and have pleaded guilty to two summary charges, specifically Summary Charge 6, that at Werribee on 11 April 2018, you failed to comply with an order without reasonable excuse by failing to supply the password for your laptop, and on that same date, Summary Charge 7, you failed to comply with an order without reasonable excuse, by failing to supply the password for your mobile phone.
4 The maximum penalty for failing to comply with a direction to assist police is two years' imprisonment. And the maximum penalty applicable to the charges of sexual penetration, which I have left out - can counsel just confirm - I believe that is 10, but - - -
5 MR SINGH: Ten years, Your Honour.
6 HER HONOUR: Yes, that is right, so I add that. Now, your offences on the indictment arose out of events which took place between yourself and the complainant, Janelle Dunkley.[2] I will be referring to the complainant by initials and various family members. You can explain to the complainant it is necessary, and it will even be further anonymised, I have no doubt, when it is published, all right?
[2]A pseudonym.
7 MR SINGH: As Your Honour pleases.
8 HER HONOUR: No offence intended. It is not necessary for me to recount in great details 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 so summarised by the prosecutor and discussed during the course of the plea hearing. It is sufficient for present purposes to simply say the facts in this case are most serious and disturbing.
9 I turn to a summary of your offending. You are currently 49 years of age, and at the time of your offending were 33 and 34 years of age.
10 Ms Dunkley is now 29 years of age, and at the time of your offending was 13 years of age.
11 When Ms Dunkley was growing up, she loved singing, was in a choir at school, and wanted to take singing lessons. When she was about 10 years old, her mother found a singing teacher (you) and took her to a lesson. You gave lessons at your father's home in Berwick, where one room had been set up as a music studio. After that lesson, Ms Dunkley told her mother, Norah Dunkley,[3] she did not want to go back.
[3]A pseudonym.
12 In August 2002, you married and went to live in Taylors Hill.
13 You taught singing in your father's home and later at Taylors Hill. You moved your recording studio from your father's address to Taylors Hill in about 2003.
14 At about age 11 or 12, Ms Dunkley was awarded a scholarship with the National Children's Choir of Australia. She, however, lost interest in singing in a choir and wanted to sing on her own. She told her mother of that desire and her mother found a newspaper advertisement placed by you, offering private singing lessons at your father's home in Berwick, close to where they were then living.
15 Ms Dunkley's mother searched the internet and found pictures of you with famous singers. She suggested to Ms Dunkley you might have some contacts and could provide opportunities for Ms Dunkley if she wanted a singing career. Norah Dunkley reminded Ms Dunkley she had seen you once before and asked if she wanted to go back to you for lessons.
16 Ms Dunkley was just 12 years of age when she went for her second lesson with you. She was then in Grade 6. Norah Dunkley went with her on that occasion to that lesson. The studio had a cork board displaying photos of girls you told them were your past students. You went on to tell them some of those girls were now with a musical career, including singing back up for Brittany Spears or singing in Singapore.
17 You made an impression when you told Norah Dunkley you had signed them all up to various music labels.
18 As they were leaving after that lesson, you told Norah Dunkley it would be easier to teach Ms Dunkley without her mother present. That would be the best course, you said, if she was to be serious about getting the most from Ms Dunkley. That was the last time Norah Dunkley went to a lesson with her daughter.
19 When Ms Dunkley was about 13, you told her she was ready to record a demo and discussed this with Norah Dunkley, saying you would need at least one full day during the week for that purpose, which meant Ms Dunkley would miss a day of school every week. At first, Norah Dunkley was hesitant, however, you had a website set up for Ms Dunkley, describing her as an 'up and coming new talent endorsed by Jason Stan'. Norah Dunkley relented.
20 Around this time, you and your wife moved to Taylors Hill. You told Ms Dunkley your marriage was unhappy and that you were getting a divorce. It was mid-2004 when you invited Ms Dunkley to record an album at your home studio in Taylors Hill. You told your wife that Norah Dunkley was always in attendance during the recording sessions. That was not true, as I discussed with your counsel, Ms Blair, which reflected some planning by you.
21 Ms Dunkley moved to another school when she was halfway through Year 8, and Norah Dunkley told the school that Ms Dunkley had to take every Friday off to record songs with you. At this stage, Ms Dunkley's relationship with her mother was becoming strained and she was becoming increasingly close to you, whom she considered to be her best friend.
22 At around that time, Ms Dunkley was spending four to five nights a week at her nan's house due to a deterioration in her relationship with her mother. You would call Ms Dunkley on the phone at her nan's house, as well as send her text messages.
23 One Friday, Norah Dunkley took Ms Dunkley to your home in Taylors Lake for a lesson and left Ms Dunkley with you. Ms Dunkley was wearing a skirt. After her mother left, you said to Ms Dunkley, 'Oh my God, what are you doing to me', and laughed, saying, 'You've found my weakness'.
24 You sat in a chair in the music room and asked Ms Dunkley to come and hug you. You had hugged her many times before. You asked Ms Dunkley to sit on your lap facing you, with her legs on either side of you. You pulled her into a bear hug and thrust your pelvis slowly saying, 'That's what'. Ms Dunkley asked, 'What's what?' You ignored her - you laughed, rather, took her hand and put it on the outside of your pants, below your belt buckle. Ms Dunkley could feel you had an erection. This is relied upon by the prosecution as an uncharged act, or other sexual misconduct, relevant and providing context for the offending that is charged. Your offending on the indictment was not isolated.
25 You put your hand up her skirt and grabbed the inside of her thigh, close to her vagina, saying, 'Oh my God, what you do to me, girl – far out'. You laughed again and said, 'This isn't going away anytime soon'.
26 You became more serious and asked Ms Dunkley if she trusted you. She said she did. You asked her to lie on the ground and positioned yourself between her thighs saying, 'No one, not even you, will ever understand how much I love and adore you'.
27 You asked her if she wanted to see your '11-finger trick'. Ms Dunkley was confused and just lay there. You lifted up her skirt, kissed the inside of her thigh, laughed and said, 'You've got the G-string on, you're as bad as me'.
28 Your laughter relaxed Ms Dunkley a bit and you put one finger inside her vagina, then two fingers inside her vagina (Charge 1, sexual penetration of a child under the age of 16 – rolled-up charge).
29 You asked if she was okay and Ms Dunkley nodded.
30 Then Ms Dunkley felt pain in her vagina. You pulled one hand out from under her skirt and placed the hand next to her body. You then pulled the other hand up and placed it on the other side of her body. She could still feel something inside her vagina and realised it was your penis (Charge 1, sexual penetration of a child under 16 – rolled-up charge continued).
31 She realised she was losing her virginity. You moved your penis in and out of her vagina, which hurt her. You were kissing her, running your hands through her hair and telling her you loved her.
32 Ms Dunkley's mother, Norah Dunkley, knocked on the door and you quickly put your penis back in your pants, did up your fly, and let her in. Norah Dunkley noticed her daughter's hair and make-up was messy and asked her what was wrong. Ms Dunkley told her mother she had been upset but was okay now. Norah Dunkley did not think anything more of it.
33 The lessons continued each Friday, and two or three nights per week at Taylors Hill or at Berwick.
34 A couple of weeks after your offending in Charge 1, Ms Dunkley was at the studio at Berwick. She was still 13 years of age. You had an erection and asked Ms Dunkley to put her mouth on it. She hesitated, but you re-assured her and told her not to worry. Ms Dunkley put her mouth around the top of your penis and kissed it for about 30 seconds. You pushed her head down, so your penis went into her mouth and throat, causing her to gag (Charge 2, sexual penetration of a child under 16).
35 Ms Dunkley pulled her head back up. You told her she would get better at it.
36 In around September 2004, you moved your recording equipment back to Berwick and started to work with Ms Dunkley at that address. Your wife was then pregnant with your first child. You told your wife that your father was always there so that Norah Dunkley did not need to stay.
37 Around that time, you and Ms Dunkley regularly communicated either by telephone or text message. When your wife expressed concern about Ms Dunkley's messages, suggesting she was romantically involved with you, you told her she was overreacting, and that Ms Dunkley was just a friend.
38 At one stage, Ms Dunkley ran away from home and you asked your wife if she would consider allowing Ms Dunkley to move in with you. Your wife refused, stating it was totally inappropriate.
39 The sexual relationship between Ms Dunkley and you continued until early 2005. This was relied on as uncharged context evidence; that is, your offending was not an isolated incident.
40 Norah Dunkley began to be suspicious about the relationship between Ms Dunkley and you and enlisted help from Reverend Creasey. He spoke with Ms Dunkley about her mother's concerns. Ms Dunkley denied there was anything going on between you and she but did say you were like a best friend to her.
41 Reverend Creasey asked Ms Dunkley if he could attend one of the singing lessons to meet you.
42 Ms Dunkley told you that Reverend Creasey wanted to meet with you, and two or three days later he came to the studio and told Ms Dunkley and you that Norah Dunkley had been making accusations about the relationship. After some discussion, Reverend Creasey concluded there were no concerns for Ms Dunkley's well-being.
43 After a time, you told Ms Dunkley you would have to start seeing her less as she was getting older and would fall in love with someone her own age. Ms Dunkley begged you not to change anything and told you that you were her world.
44 When Ms Dunkley was 14 years old, DHHS became involved because of Ms Dunkley's rebellious behaviour at school and at home. Ms Dunkley was placed into foster care. DHHS questioned Ms Dunkley about her relationship with you. She denied any improper relationship between you.
45 After about six months at secondary college, Ms Dunkley told her friend, Chanelle Pineda,[4] she was sleeping with her singing teacher. In Year 9, when she was 14, and when Ms Dunkley started at a new school, she developed a close friendship with Jemimah Hassan[5]. She told Ms Hassan she had been in a sexual relationship with her singing teacher.
[4]A pseudonym.
[5]A pseudonym.
46 When she was about 20 years of age, Ms Dunkley visited Norah Dunkley, and told her she and you had sex when she was having music lessons with you.
47 Police arrested you at your home on 11 April 2018 and seized your mobile phone. Police asked you to provide the pin access to your phone. You declined, indicating you wanted to obtain legal advice first.
48 Police also seized a laptop computer and requested you also provide a password for the laptop. You refused to provide the password for the laptop (Summary Charge 6) and refused to provide the password for your mobile phone (Summary Charge 7). Provision of that information was required pursuant to the terms of the search warrant.
49 You were interviewed by police on 11 April 2018 and declined to comment on the allegations. Such, of course was your right.
50 There are a number of aggravating features of your offending. You were Ms Dunkley's singing teacher, Ms Dunkley was young, and as her teacher, your offending involved a breach of trust of not only Ms Dunkley, also of Norah Dunkley, who trusted Ms Dunkley in your care. Ms Dunkley was vulnerable, in that you were promising her a singing career, something she wanted. You also told Ms Dunkley's mother you could teach Ms Dunkley 'better' if Norah Dunkley did not attend lessons with Ms Dunkley and then took advantage of that situation. There was also a significant age difference between you and Ms Dunkley.
51 In addition, you did not use a condom relevant to the penile-vaginal penetration, such being an aggravating feature (See R v Khem[6]).
[6]186 A Crim R 465.
52
You have admitted a number of prior court appearances, although I note none for sexual offending; nevertheless, a concerning prior history. Offending in the past has involved criminal damage, unlawful assault, using telecommunications to menace, dealt with at Dandenong Magistrates' Court on 25 September 1992. You were convicted and placed on a community-based order for six months. On 1 July 1997, you appeared at Dandenong Magistrates' Court on two charges of stalking, two charges of breaching an intervention order, and using a phone service to menace/harass/offend, for which six months' imprisonment was suspended for 12 months, and you were also placed on a community correction order for 12 months. Your most recent prior court appearance was on
12 April 2001 at Dandenong Magistrates' Court.
53 You have subsequently appeared at Court for non-sexual offending and also have, as I understand it, a committal listed in 2020 for charges including rape. You are pleading not guilty to those charges. I disregard that pending matter yet to be finalised when sentencing you on the charges before me.
54 You subsequently appeared at court in 2010 on a charge of criminal damage referable to offending against your ex-wife, as I understand it, and you 'trashing' her home. You were sentenced to a suspended sentence and a community correction order.
55 As I have said, I note no past sexual offending other than the charges before me and that is your first time in prison.
56
Turning to pre-sentence detention, s.18(4) of the Sentencing Act 1991. You were initially on bail for this offending; however, were remanded in custody following entering of pleas of guilty to these charges at committal on
19 August 2019. Up to and including 9 December 2019, you had served 113 days in custody for this offending.
57 Ms Blair urged, however, you also been in custody since 10 July 2019 and that consideration be given to another 38 days, I think was the agreed figure when we were here, of pre-sentence be taken into account, consistent with R v Renzella[7]. This is not, of course, a mathematical exercise, as has been made clear in not only that, but subsequent authorities. It is, however, relevant.
[7][1999] VSCA 85 (‘Renzella’).
58 Regarding your pleas of guilty, they were entered on the morning of the committal hearing before evidence was called, and Ms Dunkley was not cross-examined. The prosecution accept, as do I, you are entitled to a sentencing discount accordingly.
59 You have pleaded guilty to the four charges before me (that is, including two summary charges) and you are entitled to have that fact taken into account in your favour, and I do so. The community, by your pleas of guilty, have been spared the time and cost of a trial, and witnesses have been spared the ordeal of having to give evidence upon your trial and, in particular, I refer to Ms Dunkley. Your pleas of guilty have utilitarian benefit.
60 I also take into account the stage at which you entered your pleas of guilty to these charges, being immediately prior to any witnesses being called and cross-examined at committal.
61 In the circumstances, I am prepared to accept, in your case, your plea of guilty indicates some remorse for your offending, though I am concerned regarding the extent of your remorse, given your concerning descriptions of your offending and 'reasons' for it, as I discussed with Ms Blair (see the Report of Mr Candlish (paragraphs 86-91) and your letter to Ms Dunkley, written 9 December 2019).
62 As a result of your plea of guilty to two charges of sexual penetration of a child under 16, a class 1 offence, as the offending took place on separate occasions, you are to be a registrable offender, with a reporting period of life, pursuant to the Sex Offenders Registration Act 2004. Counsel who appeared on your behalf, Ms Blair, conceded such applied to you.
63 There were no victim impact statements before me. I was advised Ms Dunkley and Norah Dunkley had been advised of their right to make a statements and had declined to do so.
64 Ms Blair provided a written Outline of Submissions for the plea hearing.
65 Regarding your offending, she conceded you were in a position of trust as Ms Dunkley's music teacher, and that your offending represented a breach of that. Also, she conceded a breach of trust referrable to Norah Dunkley. Ms Blair also conceded the age difference between you and Ms Dunkley, and the power imbalance. She is correct.
66 There was no doubt, Ms Blair conceded, Ms Dunkley was young and impressionable, as I discussed with her. It was further conceded by Ms Blair, consent was not a mitigating factor in offending of this nature; however, urged there was not an absence of consent (Clarkson v The Queen[8]).
[8](2011) 32 VR 361.
67
At the time of this offending, you were in an 'unhappy' and controlling marriage, you said. Whilst that may or may not have been the case, that of course does not provide an excuse or reason for it, such appropriately not suggested by
Ms Blair.
68 Regarding Charge 1 and totality, Ms Blair urged that offending involved a single occasion of sexual contact (i.e., two acts). That is so (Zhao v The Queen[9]). Charge 2, I note however, occurred a couple of weeks after Charge 1. And I note the applicability of totality regarding Charge 1.
[9][2018] VSCA 267.
69 Ms Blair conceded current sentencing practices were just one of the factors the court had to take into account when sentencing. But ultimately, each case is to be determined on a case-by-case basis. I agree.
70 Ms Blair submitted equal justice also required sentencing practices that existed at the time of the offence be considered. And that is so.
71 Ms Blair referred to Stalio v The Queen.[10] The prosecutor Mr Singh referred me to recent analysis and discussion of current sentencing practices in Carter (a Pseudonym) v The Queen.[11]
[10](2012) 46 VR 426.
[11](2018) 272 A Crim R 170.
72 Ms Blair referred to your prior criminal history and lack of prior convictions for any sexual offending, of which I am aware. Also, that this is your first time in custody at age 49.
73 While you were in custody, you instructed you had been sexually assaulted and, as a result, isolated yourself from other prisoners, and had a solitary existence in custody. This was apparently not reported by you, at least no confirmation was provided regarding that.
74 In custody, you have not had any contact with your children, who are 14 and 12 years of age, and had been unable to provide financial and emotional support to them in custody. It was submitted you also worried about your inability to care for your elderly mother, who was in poor health due to being incarcerated.
75 Ms Blair was not relying on 'family hardship' and 'exceptional circumstances', but rather urged, consistent with general sentencing principles, your time in custody would be difficult for you, worrying about your children and mother. And I accept that is so.
76 Turning to the report of Mr Candlish, Ms Blair referred to his opinion you 'appeared' to meet the criteria for Other Specified Personality Disorder (mixed personality features, including narcissistic and histrionic traits). Also, that he assessed you as being of a low risk for sexual recidivism.
77 Turning to your rehabilitation prospects, Ms Blair urged they were positive, given your low risk of sexual recidivism and strong family support from your mother and brother. In addition, you were motivated to provide for and care for your children, have a strong work ethic and work history. It was likely you would be able to gain employment upon release from custody.
78 You also instructed that you were motivated to engage in psychological counselling and had undertaken courses offered to you in custody (see Exhibit 4).
79 Turning to your background and history, you were born and raised in Dandenong.
80 Your father died in 2018 at the age of 85. Your mother is 83 and in poor health. She visits you in custody and remains very supportive of you. Your mother and brother were in court to support you at your plea hearing.
81 You attended Dandenong High School until the start of HSC, then left school to do a Bachelor of Music at the Australian National Theatre.
82 You worked in the music industry as a singer and songwriter, and music teacher. You had also worked at times as a hairdresser and car salesman. You had never had lengthy periods of unemployment.
83 Turning to your relationship history, you had been in numerous relationships in the past and had been married twice. You were first married at age 22, which ended when you were 26, with no children of that marriage. In 2002, you married and separated in 2009, with two children.
84
I turn to the report from Simon Candlish, Consultant Psychologist, dated
3 December 2019 (Exhibit 2).
85 Describing your background and history, your parents separated initially when you were about seven years of age, got back together again, but ultimately separated, as I understand it, in total, six times.
86 You lived in 11 houses during your childhood and reported no positive memories of your childhood, other than Christmas. Most of your memories, you said, were 'horrible'. You described, however, a current closeness to your mother, although it was unclear to Mr Candlish what had led to that improved relationship with her, given your negative memories of your childhood.
87 You referred to having been sexually abused as a child by a cousin, however had not spoken in any detail about that, with the exception of telling your ex-wife (paragraphs 76-79).
88 You completed Year 12 and reported doing well at most subjects.
89 You were subjected to some bullying in primary school, which increased in secondary school. You said you had no friends and would often sit in a corner against a tree. You described that as a result of bullying your high school existence was 'horrible'.
90 You said you were not suspended or expelled in primary school but suspended once in secondary school.
91 Turning to your employment history, you worked in hairdressing for two and a half years, then became involved in music and worked in a music store for two years. You progressed to performing in live shows as a singer, then writing music at a professional level. You said you had released a number of albums.
92 You described a lack of interest in alcohol and of having never used illicit drugs. Your apparent drug-affected presentation in offending that involved your ex-wife in 2009, likely being the result of an overdose of antidepressant medication.
93 You were on antidepressant medication in July 2009, but ceased taking it in September 2009, due to its side effects.
94 You divorced your second wife, as I said, in 2009, and there had been difficulties with that divorce, in part, regarding your access to the children.
95 You described after separation from your wife being 'dreadfully lost'.
96 You described not having had close friendships with others and reported the most important people in your life now were your mother, brother and two children.
97 You reported you had six significant past relationships, that you married your first wife in 1995 after being together for two years, then separating after one year. It was your ex-wife who obtained the intervention order against you.
98 You were then single for five years, before meeting your second wife, remaining together for eight years and divorcing in September 2009. You reported that you had then had another partner for four years, who 'cheated' on you.
99 Your next relationship lasted for approximately three years, that person also apparently 'unfaithful'. You described another relationship of three years' duration that 'didn't end well'. Your most recent relationship lasted eight months.
100 Regarding your offending before me, you said the victim would dress provocatively, also her mother, and that they both appeared to be in competition over you (paragraphs 83-85). Your attempt to put blame on the victim in my opinion is troubling. You were the adult, it was your responsibility to avoid offending. There was a significant power imbalance between yourself and Ms Dunkley and I discussed this statement by you with your counsel, Ms Blair.
101 At the time of your sexual offending, you said you were in a 'terrible place', in particular in relation to your marriage. You described 'leaning a lot' on Ms Dunkley and Norah Dunkley for emotional support.
102 When you and Ms Dunkley started to record a demo, you spent significant amounts of time together and became 'romantically involved' as you described it. I also discussed with Ms Blair my concern with that description by you and your lack of appreciation of the seriousness and inappropriateness of your offending.
103 You said you started engaging in oral-penile, penile-vaginal, and digital-vaginal sexual activity. You said, 'She knew exactly what she was doing', but, 'there's no excuse, I should've taken the high road'. Reference by you to Ms Dunkley knowing exactly what she was doing is a further concerning statement by you reflecting your lack of appreciation of the inappropriateness of your offending.
104 You believed you were in love with Ms Dunkley and that it was after approximately 12 months you engaged in sexual contact with her. It appeared to Mr Candlish, you struggled to identify how the victim was harmed (paragraph 90). I agree. Further, your recent letter to Ms Dunkley (Exhibit 3) concerningly refers to your offending as 'misjudgement' and a 'mistake' by you.
105 You denied spending any significant amount of time with other female students or having any sexual attraction to underage females. You had not engaged in any further sexual offending since 2005. I do not refer to the alleged offending yet to be dealt with until 2020, involving an adult complainant; as I have already said, I have not taken that into account when sentencing.
106 Using the Personality Assessment Inventory ('PAI') Assessment Tool, your pattern of responses to Mr Candlish suggested you tended to present yourself in a consistently favourable light, and as being relatively free of common shortcomings to which most individuals would admit. Further, you appeared reluctant to acknowledge personal limitations and tended to repress or deny the stress, or other internal consequences that might arise from such limitations. That tendency appeared likely to lead you to minimise, or even be unaware in other areas where functioning might be poor.
107 Based on your own self-report of your psychosocial history and previous reports available to Mr Candlish, you appeared to reveal at least a moderate personality impairment, with difficulties with accurate empathy and some signs of egocentricity.
108 You 'appeared' to reveal some narcissistic personality traits, and also signs of histrionic personality traits, excessive emotionality and attention seeking.
109 Mr Candlish utilised the Static-99R and Risk for Sexual Violence Protocol ('RSVP') Assessment Tools. Results indicated should you re-offend in a sexual manner, you might engage in penetrative sexual behaviour with an under-age post-pubescent female. Should you re-offend in that way, it would likely result in psychological harm to your victim.
110 You fell into the low risk category for sexual recidivism of a nature outlined in the risk scenario (paragraphs 149-151).
111 Turning to your case formulation, Mr Candlish concluded that over the years, in particular when you were a child, you developed problematic personality traits related to attention seeking and egocentricity, as well as over-emotionality. You 'may' have enjoyed the attention of Ms Dunkley and her mother. You appeared to gain a sense of emotional support from Ms Dunkley over time and inappropriately developed a personal relationship with Ms Dunkley with limited boundaries.
112 You appeared to regard Ms Dunkley as mature and capable of engaging in sexual activity with you. Your problematic personality traits, including egocentricity and associated poor empathy, impacted on your ability to avoid sexual offending. I remain concerned regarding your attitude to this offending.
113 Mr Candlish concluded you did not appear to have a deviant preferential sexual interest in children, rather lacked skills and insight to avoid the inappropriate relationship you formed with Ms Dunkley over time. You might have found a sense of entitlement to have your sexual needs met.
114 You did not reveal a history indicative of sexual deviance, nor did you appear strongly motivated towards pursuit of underage females to meet your sexual needs.
115 A number of interventions were suggested by Mr Candlish to maintain your offence-free lifestyle and pro-social existence.
116 Your counsel, Ms Blair was not relying on the principles of R v Verdins & Ors,[12] based on the report of Mr Candlish and, in my opinion, that was an appropriate concession on the material before me.
[12](2007) 16 VR 269.
117 Turning to sentence, it was again appropriately conceded by Ms Blair that the appropriate sentencing disposition was one of imprisonment.
118 Regarding your rehabilitation prospects, I have some concern regarding your real appreciation of the seriousness and inappropriateness of your offending and arguable minimisation of it. Hopefully, if you undertake appropriate sex offender courses in custody prior to your release, this will improve your prospects of rehabilitation. I do again note your lack of prior sexual offending and good work history and other matters referred to in these sentencing remarks relevant to you prospects of rehabilitation.
119 I am comforted in your rehabilitation prospects by Mr Candlish, who assessed you as a low risk of sexual re-offending.
120 As well as matters personal to you, including your prospects of rehabilitation, as I find them to be, there is also the need for general deterrence when sentencing.
121 The courts have repeatedly referred to the seriousness of sexual offending involving children. Ms Blair acknowledged her awareness of such pronouncements by the courts.
122 There is also the need for specific deterrence when sentencing you as your offending occurred on two separate occasions, and in the context of the 'uncharged acts' as described, i.e. other sexual misconduct. This offending was not isolated.
123 When sentencing you, I must seek to maximise your prospects of rehabilitation as they may be.
124 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. There is some comfort in that regard from the report of Mr Candlish that you are a low risk of sexual re-offending. On the other hand, there are concerning statements by you regarding the inappropriateness of your offending.
125 I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and generally to impose a just punishment.
126 I turn to the applicability of Renzella principles which has been referred to extensively in Wheldon v The Queen,[13] and Karpinski v The Queen.[14]
[13](2011) 31 VR 297.
[14](2011) 32 VR 85.
127 The court has a discretion to declare this so called 'dead time'.
128 In the Victorian Sentencing Manual, it is noted that 'taking "dead time" into account is not a mathematical exercise and the court does not need to reduce the sentence by the precise amount of 'dead time'. Instead, the court should reduce the sentence by the amount it considers appropriate in the circumstances.'
129 The discount to be made by reference to this principle should be achieved by addressing both the head sentence and the non-parole period that would otherwise have been imposed (R v Black[15]).
[15][2007] VSCA 82 [78].
130 In your case one month is declared Renzella time.
131 In sentencing you, I also take into account, principles of totality and I also note Charge 1 relates to two acts in the same incident.
132 On Charge 1, you are convicted and sentenced to five years' imprisonment.
133 On Charge 2, you are convicted and sentenced to three years' and six months' imprisonment.
134 On Summary Charge 6, you are convicted and sentenced to three months' imprisonment.
135 On Summary Charge 7, you are convicted and sentenced to three months' imprisonment.
136 Charge 1 is the base sentence and I direct that 11 months of Charge 2 be served cumulatively upon Charge 1.
137 I direct that the sentence on Summary Charges 6 and 7 be served concurrently with the sentence imposed on Charge 1.
138 That results in a total effective sentence of 5 years' and 11 months' imprisonment and I direct you serve a period of 3 years and 11 months before you are eligible for parole.
139 The sentence imposed reflects the application of Renzella, to which I have previous referred.
140
Pursuant to s.18(4) of the Sentencing Act 1991, I declare you have spent 120 days, that is 120 days in custody by way of pre-sentence detention referable to the charges that are before me, up to and including yesterday, which was
16 December 2019, and direct that that be entered into the records of the court. I will ask if counsel agree or otherwise in a minute.
141 Pursuant to s.6AAA of the Sentencing Act 1991, had you pleaded not guilty to these charges, and if you had been found guilty of them, I would have sentenced you to a term of imprisonment of nine years, with a non-parole period of seven years.
142 I have also referred to my order that you be subject to the Sex Offenders Registration Act 2004 for life.
143 And in a moment, my associate will approach you, as you simply to sign for the documents, acknowledging that you have received the paperwork relevant to that order. You are not being asked if you want to be placed on that order, I have already made that declaration, she is simply asking you to acknowledge that you have received the paperwork by signing for it. But if you do not want to sign it, that is up to you.
144 Now, any other orders? How about the PSD, is that right?
145 COUNSEL: Yes, Your Honour.
146 HER HONOUR: Everyone agrees with that? And I take it you do not need to me to repeat the maths? It is not that many charges. All right, thank you. Now, you just go back and ask him to sign that document, all right? You are only signing for the paperwork, but if you do not want to sign it, you know, I understand that. All right. Well, anything further?
147 COUNSEL: No
148 HER HONOUR: Thank you both for your assistance. And I am sorry for that delay this morning; out of my hands. Yes, thank you both.
- - -
0
12
0