Director of Public Prosecutions v Stanley (a pseudonym)

[2024] VCC 228

IN THE COUNTY COURT OF VICTORIA

AT WARRNAMBOOL

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

BLAKE STANLEY (A PSEUDONYM)

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JUDGE:	HER HONOUR JUDGE CHAMBERS
WHERE HELD:	Warrnambool
DATE OF HEARING:	15 February 2024 (Warrnambool)
DATE OF SENTENCE:	5 March 2024 (Melbourne)
CASE MAY BE CITED AS:	DPP v  Stanley (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2024] VCC 228

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – sentencing    

Catchwords:              Guilty plea – three charges of incest against step-daughter – offending comprised of two rolled-up charges representing separate occasions the accused sexually penetrated the victim and a single instance of sexual penetration – offending occurred over the course of three years – sustained and repeated offending – degree of force associated with some of the occasions of offending – significant victim impact – limited remorse or insight – delay, age and ill-health considered – no prior criminal history and no intervening offending over a period of two decades - demonstrated prospects of rehabilitation – low risk of future offending - sentencing considerations of general deterrence, just punishment and denunciation – serious sexual offender provisions.

Legislation Cited:      Sentencing Act 1991; Sex Offenders Registration Act 2004

Cases Cited:Worboyes v. The Queen [2021] VSCA 169; DPP v. Sari [2023] VSC 523; Biba v. The Queen [2022] VSCA 168; Boxer (a Pseudonym) v. The Queen [2021] VSCA 300

Sentence:                  Total effective sentence of 11 years, six months’ imprisonment with a non-parole period of seven years

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr A.J. Moore	Office of Public Prosecutions Victoria
For the Accused	Mr J. Portelli	Furstenberg Law

HER HONOUR:

1Blake Stanley[1], following a sentence indication hearing before me[2], you pleaded guilty to three charges of incest on 5 December 2023. The crime of incest carries a maximum penalty of 25 years' imprisonment.

[1]A pseudonym

[2]The sentence indication hearing was conducted on 30 November 2023.

2The incest charges relate to the occasions you sexually offended against your stepdaughter, Mae Page[3], between January 1998 and November 2001.

[3]A pseudonym

3At the time of the offending, you were between 31 and 35 years of age; Mae was between 16 and 19.

4When these reasons are published, your name and that of the victim will be anonymised to prevent any risk of the victim being identified.

5You are now 57 years old. You have no relevant prior criminal history.

Circumstances of offending

6You are to be sentenced on the basis of the Summary of Prosecution Opening for Plea dated 10 January 2024.

7Before I turn to your offending, it is necessary to set out the background to your relationship with the victim.

8Mae Page is the only child born out of a relationship her mother had with another man. Mae was raised by her mother and her mother’s partner at the time she was born, with whom her mother had a son.

9When Mae was 12, her family gave her a horse as a gift. However, the horse displayed some behavioural problems and you were recommended to them as someone who worked with difficult horses. This is when you first met Mae and her mother.

10When Mae was in Year 9, you began to visit the family more often; attending the house nearly every night of the week and on weekends. You began to pay Mae more attention at this stage. Mae says you were 'father friendly' at first, and says she would sit on your lap. Over time, you began touching her, including 'incidentally' touching her on the thighs and breasts.[4]

[4]These are uncharged acts.

11You and Mae’s mother commenced a sexual relationship during this period, and in 1997, you moved to live with her and her children in a town in South Australia. In 1997, you married Mae’s mother, shortly after the two of you had a child together.

12In November 1997, the family relocated to a rental property in regional Victoria. Mae continued living with her maternal grandparents in South Australia in order to finish Year 11. For Year 12, you and Mae’s mother purchased a used car for Mae so she could practice driving home after the school week before obtaining a full licence. She continued to live with her maternal grandparents during Year 12, returning home on weekends.

13In that year, at the end of each week you would drive to collect Mae from school and either you or she would drive the car on the return trip home.

14You often spent time with Mae in the shed at the rear of the house, helping to fix her car. You also worked delivering wood in the region, and Mae would accompany you in your truck from time to time.

Charge 1 – rolled up charge of incest

15

The first charge of incest is a rolled-up charge comprising five separate occasions where you sexually penetrated the victim's vagina with your penis between

1 January 1998 and 5 November 2001.

Charge 1 - first occasion

16The first occasion you did so was when you were together in the shed in 1998. This was just before the victim's 17th birthday.

17The victim recalls this was the occasion you picked up an angle grinder and turned it on while you sexually penetrated her vagina with your penis. The victim told you that the act of sexual penetration was hurting, but you replied, 'it will only hurt for a little bit'. You stopped before ejaculating and told the victim that she should be grateful you stopped, even though she had not asked you to. You then pulled up your pants and told her to wait for a while before going inside the house, after you.

18The victim showered when she went inside and saw blood on her underwear. As she was cleaning up her clothes, her mother came into the laundry, asking what she was doing. The victim lied, telling her mother that she had her period. She did not tell anyone what had happened.

Charge 2 – single charge of incest

19The second incident of offending occurred in late 1998 or early 1999 and is the subject of Charge 2 – a single charge of incest where you penetrated the victim's anus with your penis.

20On this occasion, you took the victim to your parent's house. Your parents were not home, and you took the victim into the spare room, at the front of the house. The victim told you she did not want to have sex with you. You had previously assured her that if she said 'no', you would respect this. The victim told you she had her period, but in response you laughed, saying that you ''would show her something else then'. You then penetrated the victim's anus with your penis.

Charge 3 – rolled up charge of incest

21Charge 3 is also a rolled-up charge of incest, comprising four incidents where you sexually penetrated the victim's mouth with your penis, on occasions she accompanied you to work in the wood delivery truck.

Charge 3 – first occasion

22The first occasion occurred sometime in 1999, when the victim was with you in the truck as you were delivering wood. You pulled the truck over into a dirt lane at the bottom of a hill, just after a bridge and before an area of forest. You forced the victim to perform oral sex on you, by placing your penis in her mouth while you were in the truck.

Charge 1 – second occasion

23Immediately after this, you made the victim get out of the truck, and stand in front of it. You then penetrated her vagina with your penis while she was bent over the front of the truck. This is the second occasion of penile/vaginal penetration that forms part of Charge 1.

Charge 3 – second occasion

24The second occasion you forced the victim to perform oral sex was in 1999, when you were driving the truck on the Western Highway at night-time. You pulled into a petrol station to use the toilet. On this occasion, the victim’s brother was asleep in the sleeper cab of the truck. He did not wake when you asked if he needed to use the toilet. You began driving again and once you were at cruising speed, you dragged the victim towards you, pulling her by the hair before pushing her head and mouth down onto your penis.

25

The victim attempted to pull away from you, while you continued to try to push your penis into her mouth. When she turned her head away, you pulled her hair again thereby forcing her to open her mouth. When she did so, you used this moment to penetrate her mouth with your penis. This is the second incident comprising

Charge 3.

26You had previously told the victim that you believed she enjoyed oral sex when there was the risk of being watched by her brother and called her a 'slut'. On this occasion, you kept whispering to the victim, telling her that the thought of being watched was exciting. You then ejaculated in the victim's mouth, before allowing her to sit up. She then went to sleep.

Charge 1 – third occasion

27On another occasion in 1999, you went to the victim's bedroom in the family home. She was asleep, but you woke her and dragged her outside. Once outside the house, you pushed the victim onto the ground near a fernery close to the back door, before penetrating her vagina with your penis as she lay on the ground. This is the third instance of penile/vaginal penetration that forms part of Charge 1.

28The victim knew that she should wait a while before following you back inside. On this occasion, she saw her mother when she went inside the backdoor. She says her mother just glared at her and walked away.

Charge 3 – third occasion

29The victim had her braces removed towards the end of Year 12 in 1999. Around that time, you took her to the dentist to have her top wisdom teeth removed. On the way home from the appointment, the victim complained about the pain she was experiencing. You replied, 'I know what will help with the pain', and drove to a nearby sales yard, where you forced the victim to perform oral sex on you, penetrating her mouth with your penis. This is the third incident that forms part of Charge 3.

Charge 1 – fourth occasion

30You then forced the victim over the bonnet of the car and sexually penetrated her by inserting your penis into her vagina. This is the fourth occasion of penile/vaginal penetration that forms part of Charge 1. After doing so, you said words to the effect, 'See, I told you it would take your mind off the pain didn’t I'.

Charge 3 – fourth occasion

31The victim turned 19 in 2000, by which time she was living away from home. During this period, she was suffering from poor mental health, and had made a suicide attempt. You and the victim’s mother drove to collect her and brought her to back to the home.  When you arrived, you dragged the victim into the shed, yelling at her for being selfish and telling her to apologise to her mother. When she went to go inside the house, you grabbed her by the hair, forcing the victim onto her knees, and saying, 'On no, you still have to apologise more; what if I had got a speeding ticket for having to get there so fast'. You then penetrated the victim's mouth with your penis and ejaculated into her mouth. This is the fourth occasion of penile/oral penetration that forms part of Charge 3.

Charge 1 – fifth occasion

32The victim then got up to leave the shed, but you grabbed her by the shoulder and pushed her over the work bench in the shed, before penetrating her vagina with your penis. This is the fifth occasion of penile/vaginal penetration that forms part of Charge 1.

33When she went inside, the victim pretended she had fallen to explain the grease and dirt on her. Her mother told her to shower.

34Over the years, you would try to convince the victim that she was a willing participant in your sexual offending, and that she had encouraged you from the time she was 14, saying that she was 'sexy' and that it was her fault. You continued to justify your conduct in this way until the victim ceased all contact with you in August 2019, when she was 37 years old.

Report to police and interview

35The victim first reported this matter to police on 2 March 2020, completing her statement on 19 February 2021.

36On 8 February 2021, the victim conducted a pretext phone call with you, during which you discussed the following matters:

·        When the victim asked what you would have done if her mother had found out, you replied you 'probably wouldn’t be together';

·        When the victim asked what you would have done if she had fallen pregnant, you replied that you 'honestly didn’t know what would have happened';

·        When the victim told you she never wanted it, you replied, 'No love. Here’s the go. Now, I get what your trying to say: How did it happen? Can you remember the first time?' The victim said yes. You responded, 'And you didn’t want it?' The victim replied 'no'. You said, 'But you’re the one that asked if you could suck me off'.

·        When discussing the first occasion you sexually abused her, you said, 'the first time anything happened, you did not get fucked'. You continued, 'No love. Literally, the first time, you sucked me off, and that’s all'.

·        You maintained that the victim was a willing participant in the sexual activity.

37The victim told some close friends about your sexual offending, telling one that you had sexually assaulted her for many years. She also told her maternal aunt that you used to take her out to the shed and sexually abuse her.

38You were arrested and interviewed by police on 12 February 2021, during which you denied the allegations of sexual abuse. Although you had spoken to the victim on 8 February 2021, you told police you last spoke to her over a year ago in relation to the sale of some property.

Nature and gravity of offending

39I now turn to assess the nature and objective gravity of your offending.

40This was undoubtedly serious offending. The offence of incest is an inherently serious crime, as can be gauged by the maximum penalty of 25 years' imprisonment. In fixing this maximum penalty, Parliament has reflected the community's abhorrence of the crime of incest.

41You had known the victim from the time she was 12 years old. You became her stepfather in 1996, when she was 16. Your offending was a fundamental breach of the trust she was entitled to expect of you as her stepfather. The victim was also entitled to be safe in her home and on occasions she travelled with you. You repeatedly betrayed that trust for your own sexual gratification. 

42The victim was between the ages of 16-19 during this period; you were between 31-35 years of age. This is a significant age disparity.

43There are other aggravating features of your offending.

44This was not isolated offending or a momentary lapse of judgment. Rather, it was sustained and repeated sexual offending against your stepdaughter over the course of approximately three years. You had adequate opportunity to stop and reflect upon the wrongfulness of what you were doing, but you did not do so. Your moral culpability increased with each further act of sexual penetration over this period.

45On occasions, your acts of sexual penetration continued despite the victim complaining of pain or when she said 'no'. You also used force against her on occasions; for instance by pulling the victim's hair to engage in oral sex, or by dragging her from her bedroom to the back garden to sexually penetrate her vagina. You prioritised your need for sexual gratification by callously disregarding the state of the victim on other occasions; sexually penetrating her mouth when you collected her from having her wisdom teeth removed, and sexually offending against her despite knowing that she had just made a suicide attempt.

46Moreover, your offending was brazen; occurring in the house, the shed, and in the truck, irrespective of the presence of others and the risk of detection.

47There is no hierarchy of penetrative offences. However, it is relevant that Charges 1 and 3 are each rolled-up charges. For these charges, although the one maximum penalty applies, the gravity of the offending is reflected in the entirety of the instances of offending that comprise the charge. Further, the five instances of penile-vaginal penetration that are the subject of Charge 1 also carried with them the risk of pregnancy, which in the context of incestuous conduct, is a significant aggravating feature.

48The magnitude of your conduct and its impact is reflected in the victim impact statement, which the victim read aloud at your plea hearing. For the victim, the emotional harm caused by your offending has been palpable and long-term.  

49The victim describes how your offending eroded her self-worth and left her feeling unsafe and unable to trust others. She describes constant anxiety through Year 12, concerned she may become pregnant. She states that every time her period was late, she would wonder what possible explanation she could give. She attributes your offending to eating disorders and other self-harming conduct she engaged in from her late teens. The victim describes feeling unsafe in her home – of not even feeling safe in her bed – due to your offending.

50The victim describes constant panic attacks, stating she has been diagnosed by a treating psychiatrist with complex PTSD, and is medicated for depression. Although she bears no responsibility for your crimes, she says she feels as if she is the one who did the wrong thing by coming forward and tearing the family apart. As a consequence, she recounts that her relationship with her family, and her sister in particular, has been lost. She struggles to demonstrate affection, even to hug her children. The victim concludes her statement by saying that she felt numb for many years, unable to experience either joy or sadness.

51You can be in no doubt that your offending has had a profound impact on the victim.

52This was serious offending, falling in the upper mid-range for offending of this kind, for which you bear a high level of moral culpability.

Personal circumstances

53Your personal circumstances, to which I now turn, are also relevant to my sentence.

54You were born in 1966. You were raised in a regional town in the Western District. You have two older sisters, to whom you remain close. You enjoyed a close relationship with your parents, who are now both deceased.

55You father was employed as a farmhand and a bus-driver. Your mother cared for you and your sisters in the family home, working occasionally as a telephonist.

56At one point, your father sustained a serious back injury at work, requiring hospitalisation in Ballarat. During this period, the family had no other source of income, and struggled financially. You recall occasions your mother went without in order to feed the children. The family was reliant on the support of friends in the community to get by. At times, your father would return home in an intoxicated state, but was never violent towards you or your mother. Despite financial hardship, you state you never felt unloved or uncared for by your parents, and describe your upbringing as a happy one.

57However, your formative years were made difficult by congenital hearing problems that required multiple surgeries to correct. Your hearing deficits impeded your development, including your speech development. You needed to repeat prep, required remedial studies, and attended a speech therapist for many years.

58You completed primary school, but experienced bullying by older children at school. You struggled academically, and ultimately left school during Year 7. You then left home at the age of 14.

59The difficulties you experienced in your childhood are expanded upon in a reference written by your sister dated 28 August 2023. She recounts your early difficulties with language, requiring multiple ear surgeries, saying that your younger sister was often called upon to interpret what you were saying at home and at school. As a result of this and your small stature, your sister says you were bullied excessively at school, often labelled a 'retard' by other children. Your sister recalls you being placed in rubbish bins and lockers at school, stating she would often find you hours later. As a result of this treatment, she says you left school without completing Year 7.

60You first found work in a produce store for horse and dog racing in Warrnambool, where you worked for six months. Through this work, you were encouraged to consider training as an apprentice jockey. At the age of 16, you moved to a town in South Australia and began training in flat racing but as you became heavier you moved into jumps racing. You had success in this endeavour, becoming a leading jockey in the Southwest region. You rode professionally until your late 20s but suffered several injuries in the course of your racing career; requiring facial reconstructive surgery after coming off a horse, and on other occasions suffering a broken collar bone, broken limbs and instances of concussion.

61At the end of that career, you began work as a self-employed truck driver, transporting goods under contract. You have a 30-year history of volunteering for the Country Fire Authority, having spent eight years as Captain of your local station. Over those years, you were involved in thirteen interstate strike forces and have been awarded numerous service medals in recognition of your contribution, including the Australian Disaster Services Medal and the Black Saturday Acknowledgment Medal. In a letter tendered on your plea, your sister states that you would put your own business on hold to undertake firefighting duties at these times.

62Your most significant relationship has been with the victim’s mother, who you married in 1997. Together you had three children, who are now aged in their 20s and she had two other children, including the victim, from previous relationships. Your children, with the exception of the victim, remain in contact with you and you enjoy their support. In later years, you and the victim’s  mother became the carers of your grandson, but that arrangement ended when you were charged with this offending.

63Your marriage to the victim’s mother broke-down after 25 years, due to the stress of these proceedings. You separated in 2022 but still maintain an amicable relationship with each other.

64You have a prior criminal history for driving offences in South Australia dating back to the 1990s. These prior convictions are of no relevance to the sentence I am to impose for your offending in this case.

65A trial in this matter was listed in the Warrnambool circuit in March 2023. However, following a pre-trial ruling, the trial could not proceed after you were discovered in your car following a suicide attempt, and were admitted to hospital. At that time, your marriage had broken down, you had lost custody of your grandson, and had been forced to leave the CFA after years of service.

Matters in mitigation

66Having discussed the objective gravity of your offending, I turn now to the various matters that were raised on your behalf in mitigation of sentence.

Guilty plea

67First and foremost, you have pleaded guilty to these offences. Although yours was not an early plea, your plea has facilitated the course of justice and the community has been spared the time and resources associated with a trial. Most significantly, you saved the victim from the trauma and distress associated with having to relive these experiences in court. In cases such as this, involving not only the victim but other family members, the practical or utilitarian value of your guilty plea is a matter of appreciable weight in mitigation of sentence.

68Through your plea you indicate a level of remorse. However, apart from the remorse inherent in your plea, there is little evidence that you accept responsibility for your conduct, or have demonstrated any genuine remorse for your offending behaviour, or its impact on the victim.

69You were assessed by forensic psychiatrist, Dr Kevin Ong for the purposes of the sentence indication hearing. In his report dated 31 July 2023, Dr Ong reports that you regarded the allegations as 'a load of shit', later stating that you 'allowed' the victim to give you oral sex, leading to sexual intercourse. You said this was a form of 'payment' for you assisting her to move house.[5] You told Dr Ong that the victim was 'always flirting' and that you had told her off in the past for being 'skimpily dressed'. Dr Ong assessed these denials were a way of minimising your role in the offending, and 'externalising blame' to the victim.[6]

[5]Exhibit 1 – Psychiatric report of Dr Kevin Ong dated 31 July 2023, at p. 9, [59]

[6]Ibid, p. 13, [79]

70In cases where an offender's guilty plea is accompanied by genuine remorse, they are entitled to have that fact reflected in further moderation of sentence. In this case however, I am unable to conclude you have any insight or genuine remorseful for your offending or its impact on the victim.

Pandemic-related utility of plea

71

On your behalf it was argued that the utility of your plea is heightened because it further reduced the backlog of trials in the wake of the pandemic. In the case of Worboyes[7], the Court of Appeal stated that a plea of guilty should be given additional weight while the criminal justice system was experiencing

pandemic-related delays, because a plea carried a greater utilitarian benefit then than at other times.[8] However, by the time you entered your plea in December 2023, the Supreme and County Courts had both cleared their pandemic‑related delays.[9] There were no pandemic‑related delays associated with these proceedings.

[7]Worboyes v The Queen [2021] VSCA 169

[8]Worboyes, [35]-[39]

[9]DPP v Sari [2023] VSC 523, Hollingworth J, [51]

72In the case of Biba[10], the Court of Appeal recently held that, for consistency, Worboyes discounts, even if modest, must continue to be given in all courts for so long as any of them are experiencing pandemic-related delays.[11] In the circumstances, you are entitled to only a minimal additional discount for the plea you entered in December 2023.

[10]Biba v The Queen [2022] VSCA 168

[11]Biba, [26].

Delay, age and ill-health

73Delay is a factor of relevance to your sentence.

74Your offending ceased in 2001, and you now fall to be sentenced over two decades later. A lapse of time since the commission of offences of this kind is not necessarily unusual. In cases involving charges of incest, it is often the case that victims do not come forward for many years after the offending.

75Nonetheless, the delay of over twenty years does have a number of consequences for you.

76Firstly, you now fall to be sentenced to a substantial period of imprisonment as a man in your late 50s. Following a routine medical review, you were diagnosed with chronic cardiac disease and underwent triple vessel bypass surgery at the Western District Health Service on 8 December 2023. Following this you commenced intensive cardiac rehabilitation. In a letter written by your treating physiotherapist, Carla De Angelis dated 31 January 2024, she states that you are expected to return to 'pre-morbid' activity levels at the completion of the rehabilitation program. Your plea hearing was deferred to facilitate this ongoing treatment. You are otherwise in reasonable physical health.

77Secondly, Dr Ong's report refers to the circumstances in which your mood deteriorated in March 2023, culminating in your suicide attempt later that year. At this time, Dr Ong considers you met the diagnostic criteria for an Adjustment Disorder. Dr Ong states you have a tendency to ruminate about your legal position, although since your suicide attempt, he observes that you are now well supported by family. Ultimately, Dr Ong concludes that you have no diagnosed mental illness such as major depression or psychosis[12], although you continue to have suicidal thoughts. Given your level of support, Dr Ong concludes that the risk of self-harm appears to be contained.

[12]Op. Cit., at p.13, [80]

78It was not argued on your behalf, and there is no evidence to find, that you suffered any mental health disorder at the time of the offending such as to reduce your moral culpability for this offending.

79In his report, Dr Ong expresses the opinion that imprisonment may increase the risk of you impulsively self-harming. I accept that this conclusion enlivens limb 5 of the principles outlined in Verdins,[13] and that the prospect of a recurrence of your earlier Adjustment Disorder or suicidal ideation may make your time in custody more onerous than would be experienced by an offender without such disorders.

[13]       R. v. Verdins (2007) 16 VR 269

80It is not possible to predict how long you will live. However, over the past twelve months you have required triple by-pass surgery for chronic cardiac disease and have made a serious attempt on your life. It may be anticipated that your physical or mental health will deteriorate further over the next decade. Facing this prospect at your age will be an additional burden of your imprisonment, and I make allowance for this fact.

81Finally, and significantly, you have not offended in any way over the past two decades. This lengthy period has afforded you an opportunity to demonstrate actual rehabilitation.

82A number of character references were provided on your plea, all of which speak of your work-ethic, commitment to family, and your many years of voluntary service for the CFA.

83Your sister, whose reference I have already referred to, says you are respected in the community for the courage, dedication and commitment you demonstrated working for the CFA. Your son has now assumed the role of Captain of the local branch of the CFA and is employed in your business. Your sister also refers to the decision you and the victim’s mother made, in your early 50s, to begin the exhaustive process of becoming carers for your grandchild, then devoting years to his care and education, stating that you are proud of your three children and grandchildren.

84A friend who has known you for over 45 years, describes you as a person of integrity; one who is generous with his time and who is willing to go out of his way to help others in the community. He says the damage to your reputation as a result of these proceedings has had a negative impact on you; observing that you have withdrawn from your social networks and have limited your interaction with others in the community.

85Your son and daughter have also written letters on your behalf, stating that they have observed the strain these proceedings have had on you, not only financially, but socially and psychologically. They both refer to the loss of your role with the CFA and your role as carer for your grandson, as having a detrimental impact on you. To them, you were a caring and devoted father; easy-going and hardworking. Your son-in-law, who also provided a character reference, described you as a person who is family-oriented and hard-working. Your stepson also describes you as a caring, hardworking father-figure.

86While the references to your care and devotion as a father are at odds with the experience of the victim, I accept that you have otherwise been a hard-working family man who has contributed to your community more broadly. Your many years of voluntary service with the CFA are to your credit and I accept that the loss of this role and that of caring for your grandson had a significant impact on you. You are entitled to the benefit of your previous good character and demonstrated ability to live offence-free over the past 20 years in moderation of your sentence.

Prospects of rehabilitation

87I turn now to your prospects of rehabilitation.

88Having undertaken formal risk assessment testing, Dr Ong concludes that you pose a low risk of future sexual offending,[14] notwithstanding his opinion that you continue to minimise your offending behaviour. Dr Ong considers you would still benefit from treatment to develop insight into the motivation for your offending, to address the cognitive distortions he says you use to justify your behaviour and to develop strategies to improve your emotional regulation.[15] I accept the expert opinion of Dr Ong that you pose a low risk of re-offending, particularly if you engage in offence-specific treatment to develop insight into the nature and real motivation for your offending.

[14]Op Cit., page 13, [83]

[15]Op. Cit., page 15, [90]

89While I have regard to the difficulties you experienced with the development of language and with bullying in your early school years more broadly, there is no evidence before me to suggest that these challenges had any bearing on your offending. Notwithstanding the difficulties you faced in your formative years, you went on to develop a successful career as a jumps jockey before working as a truck driver. You also contributed to the community through your work with the CFA for 30 years. You maintained a relationship with your wife over 25 years and have a strong connection to your other children and to your siblings. You have no diagnosed mental health problems and no history of drug or alcohol addiction.

90The fact you have not offended in the intervening years and have the ongoing support of family, combined with Dr Ong's assessment that you pose a low risk of future sexual offending, leads me to conclude that you have excellent prospects of rehabilitation. Accordingly, the need for the sentence I impose to deter you specifically from future offending is correspondingly reduced.

Other sentencing considerations

91I turn now to other sentencing considerations.

92The paramount sentencing considerations in this case are those of general deterrence, just punishment and denunciation. The offence of incest is, by its nature, corrosive of the fundamental relationship of trust that should persist between a child and a parent. Others must be deterred from committing acts of incest by the knowledge that if they do so, a significant sentence of imprisonment will inevitably follow. I unequivocally denounce your offending by the sentence I impose.

93Neither party referred me to any authorities as illustrative of current sentencing practices. I have had regard to the Court of Appeal decision in Boxer (a Pseudonym) v The Queen[16], and other cases referred to by the Court in that decision, as broadly informing current sentencing practices for the offence of incest, particularly those in which sentences have been imposed for representative charges of incest. Of course, every case turns on its own facts, and current sentencing practices are no more than a guide.

[16]Boxer (a Pseudonym) v The Queen [2021] VSCA 300

94Upon being convicted and sentenced to a period of imprisonment on charges 1 and 2, you fall to be sentenced as a serious sexual offender on charge 3 pursuant to s 6B of the Sentencing Act 1991.

95By reason of s 6D of the Act, when sentencing you as a serious sexual offender in respect of charge 3, I must regard the protection of the community as the principal purpose for which your sentence is imposed, when determining the length of your sentence. The prosecution does not seek, and I do not propose to impose, a disproportionate sentence to achieve this objective, having regard to my positive findings regarding your prospects of rehabilitation.

96Section 6E of the Act requires that every term of imprisonment imposed on a serious sexual offender for a relevant offence (Charge 3, in this case) be served cumulatively upon any other sentences of imprisonment imposed on the offender, unless otherwise directed. While having regard to this legislative provision, I must also consider the sentencing principle of totality and also ensure that the sentence is not crushing, particularly given your age.

97Finally, I have regard to the fact that there is an overlap in three of the incidents of offending comprising charges 1 and 3. For instance, when you picked the victim up from having her wisdom teeth removed in 1999,  you are to be sentenced (as part of charge 3) for forcing her to perform oral sex before sexually penetrating her vagina on the same occasion (which forms part of charge 1). The fact that three of the incidents comprising charges 1 and 3 arise from the one event is to be recognised in the degree of cumulation ordered. I have moderated the level of cumulation having regard to this fact, although I am unable to do so in a transparent way in circumstances where both charges are rolled-up.

Sentence

98Balancing the matters to which I have referred, while having regard to the maximum penalty of 25 years' imprisonment for the offence of incest, I sentence you as follows:

99On charge 1 – a rolled-up charge of incest (comprising five instances of penile/vaginal penetration) – you are convicted and sentenced to 9 years' imprisonment. This is the base sentence.

100On charge 2 – incest (being a single act of penile/anal penetration) – you are convicted and sentenced to 6 years' imprisonment.

101On charge 3 – a rolled-up charge of incest (comprised of four instances of penile/oral penetration) – you are convicted and sentenced to 8 years' imprisonment.

102I order that 12 months of the sentence imposed on charge 2 and 18 months' of the sentence imposed on charge 3 be served cumulatively upon the sentence imposed on charge 1 and upon each other.

103This gives a total effective sentence of 11 years, six months' imprisonment. I fix a non-parole period of seven years' imprisonment. This is the minimum period of imprisonment that you must serve before you are eligible to apply for parole.

104Pursuant to s 6B of the Sentencing Act 1991, I declare that you are sentenced as a serious sexual offender in respect of charge 3 and direct that this fact be entered into the record of the court.

105Pursuant to s 18 of the Sentencing Act 1991, I declare that 19 days of presentence detention be reckoned as served under the sentence I have imposed.

106Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that had you not pleaded guilty to these offences, the sentence I would otherwise have imposed is a sentence of 14 years, six months' imprisonment with a non-parole period of ten years, six months.

107Finally, your offending attracts the provisions of the Sex Offenders Registration Act 2004 and you are a registrable offender. Pursuant to s34(1)(c) of that Act, your reporting obligations are for life.

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