Director of Public Prosecutions v Stevens (a pseudonym)
[2021] VCC 1510
•16 September 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HARLEY STEVENS (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE D SEXTON | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARINGS: | 11 May 2021; 31 August 2021 | |
DATE OF SENTENCE: | 16 September 2021 | |
CASE MAY BE CITED AS: | DPP v Stevens (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1510 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sexual Penetration of a Stepchild; Sexual Assault of a Child under the Age of 16
Legislation Cited: Sentencing Act 1991; Sex Offenders Registration Act 2004
Cases Cited:Reid (a pseudonym) v R (2014) 42 VR 295; Bugmy v R (2013) 249 CLR 571; R v Verdins & Ors (2007) 16 VR 269; Worboyes v R [2021] VSCA 169; Rv Jones [2004] VSCA 68; Brown v R (2019) 59 VR 462; Gordon v R [2013] VSCA 343; Director of Public Prosecutions (DPP) v Amaral(a pseudonym) [2020] VSCA 290
Sentence: Total effective sentence of 11 years’ imprisonment with a non-parole period of seven years and three months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J. Malobabic | Solicitor for the Director of Public Prosecutions |
| For the Accused | Ms M. Brown | Stephen Peterson Lawyers |
HIS HONOUR:
Introduction
1Harley Stevens,[1] you have pleaded guilty to six charges of sexual penetration of a stepchild, which carries a maximum penalty of 25 years' imprisonment. Pursuant to the relevant provisions of the Sentencing Act 1991, this offence is a ‘Category 1 offence’, meaning that a sentence of imprisonment must be imposed unless one of the legislatively prescribed exceptions apply. You have also pleaded guilty to two charges of sexual assault of a child under the age of 16, which carries a maximum penalty of 10 years’ imprisonment. Your offending spanned a period between 16 December 2018 and 1 May 2019; some four and a half months. Your victims were two of your stepchildren; Lisa,[2] who was then aged 13, and Thalia,[3] then aged 12.
[1]A pseudonym.
[2]A pseudonym.
[3]A pseudonym.
Circumstances of the Offending
2The circumstances of your offending were set out in the Amended Summary of Prosecution Opening Upon Plea dated 18 March 2021 (Exhibit 1), which sets out an agreed factual basis of the offending upon which you now fall to be sentenced. Your offending can be briefly summarised.
3In 2008, you commenced a relationship with the mother of your two victims, Courtney.[4] You subsequently married in January 2010 and at that time you became stepfather to Courtney's four children including Lisa, then aged four, and Thalia, then aged three. Both girls subsequently referred to you as 'Dad'.
[4]A pseudonym.
4For a few years prior to your offending the family moved to Queensland, but returned in September 2015 to live at an address in a country town in Victoria. Following your return from Queensland, your relationship with Courtney became argumentative and your intimate relationship with her declined. In April 2017, Courtney obtained work in a cleaning role with a local company, where she worked from 7:00am until 3:00pm each weekday. By August 2018, Courtney's shifts had changed, leaving her away from the family home from 2:00pm until 10:00pm. This continued until 29 April 2019, when Courtney’s hours were reduced due to an injury, meaning that she finished work earlier, at around 7:00pm.
Offending against Lisa
5
You first offended against Lisa shortly before the Christmas school holidays in 2018, when Lisa’s mother, Courtney, was at work. Lisa was on the top bunk in her bedroom, with her sister, Thalia, on the bottom bunk. You came into her room, turned Lisa around and started rubbing her vagina on the outside of her underwear for at least five minutes. When Lisa pulled your arm away you put it back, and whilst you were rubbing your 13-year-old stepdaughter’s vagina, you said, 'Whatever happens you can’t tell anyone. Not Mum, not anyone'. This was the first of four occasions when you rubbed Lisa’s vagina either over or underneath her underwear. These four occasions collectively form the basis of Charge 1 on the indictment; sexual assault of a child under 16 between
16 December 2018 and 1 May 2019. This is a rolled-up charge capturing those four occasions of offending and included on this indictment by agreement and only for the purposes of a guilty plea. In relation to this charge, you fall to be sentenced for the criminality encapsulated through those four instances.[5]
[5] R v Jones [2004] VSCA 68 at [13].
6There was a break in your offending with regards to Lisa over the Christmas holiday period, as her mother, Courtney, was then on holidays. Your offending commenced again after Courtney returned to work at the start of Term 1 in 2019. After the start of the school term, on the second occasion on which you sexually assaulted Lisa, you came into her room. As she lay on her back you rubbed Lisa’s vagina between her clothing and her underwear; the second occasion forming the basis of Charge 1 on the indictment.
7The third occasion took place sometime afterwards, when you woke Lisa and took her out of her bed and into your room. There, you lay Lisa down on your bed and pulled her underwear and shorts off and began rubbing her vagina with your fingers; this being the third occasion forming the basis of Charge 1 on the indictment. You then licked around Lisa’s vaginal opening with your tongue for about five minutes, during which time you asked Lisa if she liked it, with Lisa saying 'no'. This conduct stopped when Lisa grabbed her clothes and left the room. Your conduct in sexually penetrating Lisa’s vagina with your tongue forms the basis of Charge 2 on the indictment; sexual penetration of a stepchild.
8The fourth occasion upon which you rubbed Lisa’s vagina, forming the basis of Charge 1 on the indictment, took place approximately one week later. On this occasion, you again came into Lisa’s room and began rubbing her vagina. You did this for a few minutes while she lay on her bed, before again taking her into your room. Again, you removed Lisa’s pants and underwear and started licking her on the vagina, around the entry to her vagina. Lisa eventually pushed your head away, got her clothes on and left the room. Your conduct in sexually penetrating Lisa’s vagina with your tongue on this occasion forms the basis of Charge 5 on the indictment; sexual penetration of a stepchild.
9You repeated this conduct a week later, when you again came into her room, then brought Lisa into your room by tugging her out of her bed by her arm, pulling her into your room, and putting her down on your bed before you licked her on the vagina, licking up and down from her urethral opening to her vaginal opening. Your conduct in this regard forms the basis of Charge 6 on the indictment; sexual penetration of a stepchild. After a couple of minutes you rolled Lisa onto her stomach. At this point you were positioned on your knees. You pulled your pants down and asked your 13-year-old stepchild to touch you on your penis and you took her arm and tried pulling it towards you. When Lisa refused you pulled her up, so she was also positioned on her knees, and at this point you knelt behind her, held your arms around her stomach and penetrated Lisa’s anus with your penis, causing pain to her. She moved forward and pushed you away with her leg, grabbed her clothes and ran to her bedroom. Your conduct in this regard forms the basis of Charge 7 on the indictment; sexual penetration of a stepchild.
10Your final occasion of offending against Lisa occurred when you again came into her bedroom on a later occasion. Lisa was then lying as far away from the edge of the bed as she could but you stood on the bottom bunk below and reached out to her, pulling her closer to you before rubbing her vagina underneath her clothing and then penetrating her anus with your finger, moving it in and out for about a minute, causing Lisa pain and discomfort. Your conduct in this regard forms the basis of Charge 8 on the indictment; sexual penetration of a stepchild. According to Lisa this was the last occasion of offending because after this period, her mother, Courtney, stopped working until late in the evening.
Offending against Thalia
11On an occasion in February 2019, after you had commenced sexually offending against Lisa, you came into the girls’ bedroom, with Lisa asleep on the top bunk and 12-year-old Thalia on the bottom bunk. You woke Thalia from her sleep, rolled her towards you and sat next to her. You pulled her pants off and forced her legs apart before you started licking her on the vagina with your tongue. Thalia told you to go away and that she wanted to sleep. This conduct continued for about 15 minutes before you left. Your conduct in this regard forms the basis of Charge 3 on the indictment; sexual penetration of a stepchild.
12On another occasion, also after school had returned in 2019, you came into the girls’ bedroom again, where Lisa was asleep on the top bunk and Thalia was on the bottom bunk. Thalia was wearing her long pyjama pants and underwear. You sat beside her, put your hand under her clothes and touched Thalia on her vagina. According to Thalia you were touching her vagina and 'tickling it'. Your conduct in this regard forms the basis of Charge 4 on the indictment; sexual assault of a child under 16. This was the last occasion of sexual offending against Thalia, as on a subsequent occasion when you woke her by touching her on the hip, she told you to go away and you left.
13Your offending first came to the attention of police on 21 May 2019, when the girls’ mother, Courtney, took them to the local Police Station following some disclosures made by Lisa and Thalia to her. These disclosures came in the context of Courtney having observed you inappropriately kissing Lisa on the lips at home. Both Lisa and Thalia subsequently participated in VARE interviews, making various disclosures.
14In a subsequent pretext call with the girls’ mother, Courtney, on 24 May 2019, you admitted that you had touched Lisa on the breasts and buttocks with her clothes on and attributed your behaviour largely to alcohol.
15You were subsequently interviewed by police following your arrest on 21 May 2019, where you admitted to kissing and touching Lisa, including touching her on the skin of her vagina. You also admitted touching Thalia and putting your hand down her pants and touching her.
16You were subsequently interviewed again by police on 2 July 2019. In that interview, you denied ever penetrating Lisa’s vagina in your bedroom, denied licking Lisa’s vagina in your bedroom, denied inserting your fingers into any part of Lisa’s body and denied penile/anal penetration of Lisa. You also denied ever licking Thalia’s vagina. Clearly, given your pleas of guilty to the charges on the indictment, these were false denials.
Impact on Victims
17Victim Impact Statements prepared by your two victims, Lisa and Thalia, together with their mother, Courtney, were tendered at your plea hearing and marked Exhibits 2, 4 and 3 respectively.[6] Collectively, the Victim Impact Statements from Lisa and Thalia graphically document the profound impacts of your offending against your young stepdaughters. Clearly both girls have been significantly impacted by your conduct, with ongoing sustained trauma being felt.
[6]Victim Impact Statement of Lisa Stevens dated 4 October 2020; Victim Impact Statement of Thalia Buckley dated 6 November 2020; Victim Impact Statement of Courtney Stevens dated 26 October 2020.
18Courtney Stevens’ Victim Impact Statement was read to the Court at your plea hearing on 11 May 2021. In that statement, Courtney described ongoing feelings of guilt and judgment, anger and disgust. As a result of your conduct, Courtney has lost her marriage and feels disgusted and betrayed. There have clearly been significant psychological impacts upon her, the details of which were set out in her Victim Impact Statement.
19Victim Impact Statements are an important means through which victims of crime can meaningfully participate in the sentencing process by informing the Court of the often devastating impacts of offending upon them. In formulating an appropriate sentence in your case, I have taken into consideration the three Victim Impact Statements tendered in this case.
Nature and Gravity of the Offending
20The gravity of your offending is reflected in the relevant maximum penalties; 10 years’ imprisonment with regard to sexual assault of a child under 16, and 25 years’ imprisonment with regards to sexual penetration of a stepchild. Self-evidently, your offending must be viewed as extremely serious.
21At the time of your offending, you had been in a relationship with your victims’ mother for some 10 years. The girls had grown up essentially regarding you as their father, referring to you as 'Dad'. You in fact were their stepfather, having married their mother some years prior to the offending. Central to your parental responsibility was your duty to care for, nurture and protect your stepdaughters. Instead, you sexually violated them. Your sexual debasement of your young stepdaughters represents, in my view, an egregious breach of trust of the most fundamental kind and an inexplicable abdication of parental responsibility. Collectively, your offending represents truly appalling behaviour. Any penalty imposed must reflect the community’s abhorrence of it.
22Both girls were particularly vulnerable because of their respective ages at the time of the offending – 13 and 12 respectively – and their relationship to you. There was also a significant age disparity, with you then being aged 41 and 42.
23Your offending occurred in the family home – either in your bedroom or in the girls’ bedroom, a place where they should have felt safe.
24Your offending continued over a period of some four and a half months. During this relatively protracted period of offending, your sexual predation was diverse and escalating, commencing with rubbing of the vagina, extending to lingual vaginal penetrations and, in relation to Lisa, extending to digital and penile penetration of her anus. Whilst all penetrative offending is, by its very nature, both physically and psychologically invasive, I regard your conduct with regards to the anal penetrations as particularly serious, given the pain experienced by Lisa, then aged just 13.
25Your conduct was often sustained. In relation to the first occasion of rubbing pursuant to Charge 1, and in relation to the sexual penetration referable to Charge 2, this conduct occurred for some five minutes. There was also a degree of persistence on your part – on the first occasion comprising Charge 1, when you were rubbing Lisa’s vagina. When Lisa pulled your arm away, you put it back.
26Your offending was brazen, often occurring in the girls’ bedroom, with the other girl on the other bunk bed at the time of your offending.
27There was a degree of psychological manipulation on your part, with you telling Lisa on the first occasion upon which you rubbed her vagina, 'Whatever happens you can’t tell anyone. Not Mum, not anyone'.
28As I have already stated, the impact on your victims has been most substantial.
29Most, if not all of the indicia of aggravation[7] which would otherwise have placed your offending at the top of the range, or into a high-end example of such offending, were absent in this case (such as additional circumstances of humiliation, perversion or depravity, the use of sex toys or objects, utilisation of video or photographs, additional physical assaults or threats). Nevertheless, in my view your conduct represents serious examples of both the crime of sexual assault of a child under 16 and the crime of sexual penetration of a stepchild. In my view, your offending collectively represents a mid-range example of such offending for the reasons I have outlined.
[7]Reid (a pseudonym) v R (2014) 42 VR 295.
Personal Circumstances
30You are currently 44 years of age. You were born in February 1977. You are the youngest of five children to your parents, with two older brothers and two older sisters. Your parents separated when you were about two years of age. Your father died when you were 15 years old, apparently from a stroke. You had been close to your father prior to his death. Your mother re-partnered when you were aged three or four and you have a half-brother from that relationship, five years younger than you. You had a positive relationship with your stepfather until his death approximately 10 years ago. You have, it seems, maintained relatively good relationships with your mother and siblings, as you grew up in two country towns in Victoria.
31You were educated to Year 11 level. As an adult, you subsequently obtained a Certificate II in Automotive Studies at a TAFE in 2010.
32Following your completion of Year 11, you obtained a few jobs before obtaining employment at a cannery for some eight or nine years. You then moved to Queensland, where you worked in the area of fencing for eight months before working with a window company for four and a half years. You then returned to the area of the country town you grew up in and worked in the window industry until you were remanded in custody in November 2020.
33You have two prior convictions – for a dishonesty matter in 1995 and cultivation of cannabis in 2009, consistent with your admitted use at that time. Neither of these matters are relevant to the sentencing discretion in your case.
34You have reported only having had one previous serious relationship – that being with your wife, Courtney, the mother of your victims. As I have stated, you met Courtney in 2008 and married in 2010. She had four children of her own, each of which you treated as your own. You have a son, Tom,[8] born of this relationship in January 2011. Whilst your relationship with Courtney was initially a good one, you have reported that it deteriorated in the time period preceding your offending in the context of general arguments and discord. You have also reported a somewhat problematic consumption of homemade alcohol in the months preceding your offending, consuming multiple bottles of alcohol each night.
[8]A pseudonym.
35As is clear from the prosecution chronology contained in the Amended Summary of Prosecution Opening Upon Plea, having been interviewed by police in May 2019, you remained in the community until being remanded in custody on 13 November 2020. In this period, you experienced instability of accommodation, often sleeping in your car. Further, I note that one of your subsequent convictions dating from January 2020 relates to you sending emails to Courtney in contravention of an intervention order within this period.
Sentencing Factors
36The Sentencing Act 1991 requires me to have regard to various factors in formulating an appropriate sentence in your case. I have already referred to the maximum penalties, the nature and gravity of your offending and the impact on your victims, your personal circumstances and previous character.
37I turn now to your culpability and degree of responsibility for your offending.[9] In submissions before me at your plea hearing on 31 August 2021, your counsel conceded that your moral culpability was not diminished through a deprived background pursuant to the Bugmy[10] principles, nor was it diminished by virtue of any mental impairment in accordance with the Verdins[11] principles. Furthermore, your counsel disavowed any reliance on the explanation and justifications articulated by you in the pretext conversation with your wife, Courtney, the two police interviews and, to a degree, your narrative to consultant forensic psychologist Dr Michael Davis with regards to your use of alcohol.[12] In relation to your narrative of the offending given to Dr Davis, you referred to alcohol messing with your head and indicated a limited recall of the acts to which you now have pleaded guilty.
[9]Sentencing Act 1991 s5(2)(d).
[10] Bugmy v R (2013) 249 CLR 571.
[11] R v Verdins & Ors (2007) 16 VR 269.
[12]Depositions p.378, p.402; Psychological Report of Dr Michael Davis dated 25 August 2021 at [62].
38The opinions of Dr Davis were contained in his report dated 25 August 2021, tendered at your plea hearing and marked Exhibit A. Those opinions were confirmed and expanded upon by Dr Davis in evidence before me on 31 August 2021. In his report, Dr Davis referred to a problematic history on your part of alcohol consumption for some years, together with problematic use of cannabis and some experimentation with other drugs. He also referred to your grief with regards to the death of your father, followed soon after by the death of a friend. According to Dr Davis you appear to have experienced low mood almost continuously since your mid-teens, following the death of your father and then the death of your best friend. By the age of 15, you had already commenced alcohol and cannabis use and this reportedly increased considerably afterwards, with you continuing to use copious amounts of cannabis until approximately 2008, when you met Courtney. However, cannabis use seems to have been replaced by increased alcohol misuse.[13] In the opinion of Dr Davis, you have been experiencing chronic symptoms of depressed mood for many years, although not usually reaching a magnitude of a major depressive episode.[14]
[13]Psychological Report of Dr Michael Davis dated 25 August 2021 at [124].
[14]Psychological Report of Dr Michael Davis dated 25 August 2021 at [126].
39In the opinion of Dr Davis, your 'chronic mood difficulties have occurred on a foundation of some maladaptive personality features that have been complicated by your childhood experiences and chronic alcohol and substance misuse'.[15] In the opinion of Dr Davis, having utilised appropriate testing tools, you are unlikely to have a preferential sexual interest in pre-pubescent or young pubescent children.[16] In Dr Davis’s opinion, a diagnosis of paedophilic disorder or hebephilia would be inappropriate in your case. According to Dr Davis, child molestation offenders can be conceptualised on a continuum; from the situational and impulsive to the preferential and compulsive. Those at the preferential end are motivated by deviant sexual interests, while those at the situational end have other motivations such as power, anger or physiological sexual needs. According to
Dr Davis:'It is my opinion that Mr. Stevens’ offending places him towards the situational end of this continuum and reflects what is known as a regressed pattern of offence behaviour. The regressed pattern involves an offender with low self-esteem and poor coping skills who turns to children as a sexual substitute for their preferred peer sexual partner, particularly during times of difficulty. Alcohol intoxication likely played a pernicious role in
Mr Stevens’ sexual offending against his two stepdaughters by lowering his inhibitions and his ability to tolerate frustration to the point that the regressed pattern of offence behaviour more readily occurred. Accordingly, while engaging in sexual activity with one’s pre-pubescent or early pubescent stepdaughters is clearly problematic and destructive, it is my opinion that Mr Stevens’ offending was not motivated by sexual deviance'.[17][15]Psychological Report of Dr Michael Davis dated 25 August 2021 at [127].
[16]Psychological Report of Dr Michael Davis dated 25 August 2021 at [101].
[17]Psychological Report of Dr Michael Davis dated 25 August 2021 at [128].
40Further, Dr Davis says:
'It is my admittedly speculative opinion that the sexual offending against his two stepdaughters likely reflected a desire for intimacy that was becoming increasingly distant in his marriage at the time'.[18]
[18]Psychological Report of Dr Michael Davis dated 25 August 2021 at [129].
41The opinions of Dr Davis, confirmed in evidence before me, provide an evidentiary basis for findings with regards to the underpinnings of your behaviour and the level of risk with regards to future sexual offending, a matter to which I will shortly turn. However, Dr Davis’s opinions do not, in my view, diminish your degree of responsibility and culpability for the offending, which I find in all the circumstances to be high.
42Turning now to the issue of your plea of guilty. I am satisfied that you indicated an intention to plead guilty early in proceedings. Having been charged on
5 November 2019, following a series of committal mentions you appeared on21 August 2020 for a committal mention, at which time you were not legally represented. Nevertheless, you indicated an intention to plead guilty and the matter proceeded by way of the straight hand-up brief procedure, with a plea of guilty being entered. I agree with your counsel that this is an unusual aspect of your case – your preparedness to enter pleas of guilty notwithstanding being unrepresented at the time. I am satisfied that your plea of guilty in these circumstances must be seen as an early plea of guilty. There is significant utilitarian benefit through your plea of guilty. Your plea is reflective of an acceptance of wrongdoing and a willingness to facilitate the course of justice. Your plea has saved the community the time and expense associated with contested proceedings. Significantly, given the nature of the charges, your victims and other witnesses have been spared the trauma of cross-examination. Furthermore, your plea of guilty occurred within the context of the COVID‑19 pandemic. Given the current unprecedented challenges to the administration of justice in this State due to the scourge of COVID‑19, and the consequential significant delays to criminal trials in this State, your plea of guilty has a significantly enhanced utilitarian benefit, having regard to the significant backlog of cases currently before the courts. In these circumstances, the courts must encourage those who are guilty to so plead and such encouragement must come from an 'actual and palpable' amelioration of sentence.[19][19]Worboyes v R [2021] VSCA 169 at [35].
43Furthermore, I am satisfied that notwithstanding your efforts to diminish responsibility and deny aspects of the offending in your police interviews, you are now genuinely remorseful, warranting a further sentencing discount. Your early plea of guilty in the circumstances that I have described is reflective of remorse. Furthermore, as highlighted by your counsel in written submissions, contained within the police interviews are articulations by you of shame, regret, and an appreciation of the wrongfulness of your behaviour. The report of Dr Davis also makes reference to your acceptance of responsibility and your desire to apologise to your victims, who, in your view, should not blame themselves. Finally, in evidence before me, Dr Davis indicated that notwithstanding your poor insight with regards to the cause of your offending, you were forthright in detailing your offending conduct, you did not try to minimise your behaviour and, according to
Dr Davis, you expressed considerable and genuine remorse. In these circumstances I am satisfied that a mitigatory allowance is therefore warranted. In my view, your genuine remorse is a positive factor with regards to your prospects of rehabilitation. It also decreases the need for any sentence imposed to reflect the sentencing purposes of specific deterrence and community protection.44You were remanded in custody on 13 November 2020. For the majority of that time, you have been at the Hopkins Correctional Centre, in the Wimmera Unit, in a shared cell arrangement. Over that period there have been no incidents of concern regarding your behaviour. According to Dr Davis, you partially completed a rudimentary personal development program. You have been employed in the area of numberplate construction, a job which you find repetitive but gives structure to your day. Save for blood pressure medication you appear to be in reasonable health. You are, perhaps unsurprisingly, fairly isolated from any contacts within the broader community. You are estranged from your mother and extended family and I am informed you have very few friends. You have had no visitors or phone calls. You have had no contact from your biological son, now aged 10, though you hope one day to have some contact with him. I accept that you have been productive whilst in custody. Like all prisoners, you have had to live with the consequences of the COVID‑19 pandemic and its impact on the custodial setting. Your counsel did not specifically refer to any difficulties encountered by you in this regard though I accept, like all prisoners, that the consequences of COVID‑19 in a custodial setting has no doubt led to a degree of anxiety.
Standard Sentencing
45All of the offences to which you have pleaded guilty are standard sentence offences pursuant to the relevant provisions of the Sentencing Act 1991. The standard sentence for the offence of sexual penetration of a stepchild is 10 years’ imprisonment. The standard sentence for the offence of sexual assault of a child under 16 years is four years’ imprisonment. Pursuant to the relevant provisions of the Sentencing Act 1991, the period specified as the standard sentence for the offence is the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness. These objective factors are to be determined without reference to matters personal to an offender and wholly by reference to the nature of the offending.
46In considering the impact of standard sentencing on your case I have considered the decision of Brown v R.[20]In particular, when sentencing for a standard sentence offence I must take the standard sentence into account as one of the factors relevant to sentencing. This requirement therefore is to be treated as a legislative guidepost, having the same function as the maximum penalty. It does not allow the standard sentence to be viewed as a starting point. It does not affect the established instinctive synthesis approach to sentencing. It does not require or permit two-stage sentencing and does not otherwise affect the matters which I may or must take into account in sentencing. Accordingly, I have taken the standard sentence for the offences of sexual penetration of a stepchild and sexual assault of a child under 16 into account as one of the factors to consider in my instinctive synthesis of all of the relevant factors. My consideration of the standard sentence for these offences as one of these factors is reflected in the sentence I will impose.
[20](2019) 59 VR 462.
47Whilst the Sentencing Act 1991 requires me to have regard to current sentencing practices when formulating a sentence, pursuant to s5B(2)(b) of the Sentencing Act 1991, in relation to a standard sentence offence I must only pay regard to sentences previously imposed where sexual penetration of a stepchild, or sexual assault of a child under 16, was the subject of the standard sentence scheme. The prosecution in this case referred the Court to a number of such sentences, all of which were imposed after the commencement of the standard sentence scheme. Your counsel drew to my attention two previous sentences for offending that predated the scheme, and these are therefore relevant only on the issue of applicable sentencing principles independent of the scheme. I have considered all of the authorities carefully, noting – as pointed out by the prosecution – that previous sentences are but one factor to be taken into account, are not a controlling factor and do not set a numerical limit on the upper and lower limits of the appropriate sentence in any particular case. In addition, self-evidently each case inevitably turns on its own facts.
48The sentences I will impose with respect to the charges of sexual penetration of a stepchild and sexual assault of a child under 16 are lower than the standard sentences. Having identified and considered the relevant factors in assessing the sentence including the standard sentence, the objective seriousness of the offending and matters personal to the offender, and matters available in mitigation, these are the sentences I have determined to be appropriate.
Serious Sexual Offender Provisions
49Pursuant to s6B of the Sentencing Act 1991, upon conviction and being sentenced to a term of imprisonment on Charges 1 and 2, you fall to be sentenced as a serious sexual offender with regard to Charges 3 to 8 on the indictment. Pursuant to s6D of that Act, therefore, in determining the length of any sentence I must regard community protection from you as the principal purpose for which the sentence is imposed. Whilst that Act allows me to impose a sentence of a length that is disproportionate to the gravity of your offending in the interests of community protection, the prosecution did not urge me to do so. In my view, I have ample sentencing power to sentence you in accordance with orthodox sentencing principles without recourse to a disproportionate sentence.
50Pursuant to s6E of the Sentencing Act 1991, there is a presumption of cumulation with regards to sentencing for serious sexual offender offences. However, this does not displace the overarching principle of totality and the need to avoid a crushing sentence. There is a need, in my view, to reflect your distinct criminality as reflected in each of the charges on the indictment through a measure of cumulation; particularly given your separate and serious offending against two victims. To not impose a measure of cumulation as between the offending against Lisa and Thalia would not do justice to the gravamen of your offending and the significant impacts on your two stepdaughters. Ultimately, I must evaluate the overall criminality involved in all the offences, ensuring that there is no disproportion between the totality of the criminality and the totality of the effective length of sentences imposed. Consistent with the principles articulated in Gordon v R,[21] I must ensure that the totality principle is applied in a manner that does not undermine the legislative policy inherent in s6E of the Sentencing Act 1991.
[21] [2013] VSCA 343 at [74].
Sentencing Purposes
51Any sentence imposed must justly punish you for your serious criminal offending; appropriately described by your counsel, Ms Brown, in a powerful and eloquent plea, as representing an egregious breach of trust. Indeed, as the Court of Appeal in this State has recently affirmed, the sexual abuse of children by those in positions of trust or responsibility with respect to them calls for severe punishment.[22] Particularly, given the serious sexual offender provisions to which I have referred, the sentencing purpose of community protection has primacy. Likewise, the purposes of denunciation and general deterrence must have prominence in the sentencing synthesis. That is, through the sentence imposed I must seek to deter others from sexual offending against children. As I have stated, given your relatively limited criminal history, your early plea of guilty and your remorse, specific deterrence is of less prominence in your case.
[22] Director of Public Prosecutions (DPP) v Amaral(a pseudonym) [2020] VSCA 290 at [33].
52I turn now to the important sentencing purpose of the facilitation of your rehabilitation. As I have stated, your remorse is a positive indicator of your rehabilitative prospects. According to psychologist Dr Davis, your offending, serious as it was, was likely not borne of any underlying sexual deviance or paraphilia. After conducting a risk assessment with regards to the risk of sexual re-offending using well recognised psychological tools, Dr Davis indicated that in his opinion you currently pose a low to moderate risk for sexual recidivism.[23]
Dr Davis makes a number of recommendations with regards to your future treatment and management including individualised sex offender treatment, consideration of psychotropic medication, drug and alcohol treatment and clinical attention with regards to your persistent depressive disorder and somatic symptom disorder and associated sciatic pain. Both the gravity and persistent and escalating nature of your offending does cause me to have concerns with regards to your rehabilitative prospects. However, given all of the matters to which I have referred, I have determined that your prospects of rehabilitation are at least reasonable, provided the interventions recommended by Dr Davis are implemented. The sentence I will impose will, to the extent appropriate, seek to facilitate your ultimate rehabilitation and eventual reintegration into the community.[23] Psychological Report of Dr Michael Davis dated 25 August 2021 at [121].
Sentence to be Imposed
53Your counsel appropriately conceded at your plea hearing that, given the gravity of your offending, an immediate and significant period of imprisonment was warranted. After taking into consideration all relevant sentencing factors and principles, you are sentenced as follows.
54On Charge 1, a rolled-up charge of sexual assault of a child under 16, you are convicted and sentenced to two years’ imprisonment.
55On Charge 2, sexual penetration of a stepchild, you are convicted and sentenced to six years and six months’ imprisonment.
56On Charge 3, sexual penetration of a stepchild, you are convicted and sentenced to six years and six months’ imprisonment.
57On Charge 4, sexual assault of a child under 16, you are convicted and sentenced to 18 months’ imprisonment.
58On Charge 5, sexual penetration of a stepchild, you are convicted and sentenced to six years and six months’ imprisonment.
59On Charge 6, sexual penetration of a stepchild, you are convicted and sentenced to six years and six months’ imprisonment.
60On Charge 7, sexual penetration of a stepchild, you are convicted and sentenced to seven years’ imprisonment. This is the base sentence.
61On Charge 8, sexual penetration of a stepchild, you are convicted and sentenced to six years and six months' imprisonment.
62I order that two months on Charge 1, six months on Charge 2, 18 months on Charge 3, two months on Charge 4, six months on Charge 5, six months on Charge 6 and eight months on Charge 8 be served cumulatively upon each other and upon the sentence imposed on Charge 7, making a total effective sentence of 11 years’ imprisonment.
63I now turn to the issue of parole. The purpose of parole is to provide for mitigation of punishment in favour of rehabilitation through conditional release where appropriate. A non-parole period is the minimum time that I determine justice requires you must serve, having regard to all of the circumstances. Pursuant to s11A(4) of the Sentencing Act 1991, these being standard sentence offences I must fix a non-parole period of at least 60 per cent of the head sentence unless I consider that it is in the interests of justice not to do so. In this case, I order that you serve a period of seven years and three months’ imprisonment before becoming eligible for parole, which is more than 60 per cent of the head sentence.
64Pursuant to s18 of the Sentencing Act 1991, I declare a period of 307 days pre-sentence detention and I order that this period be deducted administratively from your sentence.
65In relation to Charges 3 to 8, pursuant to s6F(1) of the Sentencing Act 1991, you are sentenced as a serious sexual offender and I order that this fact be entered into the records of the court.
66Pursuant to s6AAA of the Sentencing Act 1991, I declare that had you not pleaded guilty, but been found guilty after a trial, I would have imposed a total effective sentence of 14 years’ imprisonment with a non-parole period of 10 years.
67Pursuant to the relevant provisions of the Sex Offenders Registration Act 2004, registration is mandatory in relation to these offences and the reporting period is for life. Pursuant to the registration scheme, upon your release from prison you must report your personal details to Victoria Police annually and report any changes. You will receive an acknowledgment form for signing in due course with regards to your reporting obligations upon your release and the consequences of any breach. It is an offence punishable by a term of imprisonment to fail, without reasonable excuse, to comply with your reporting obligations, and I make those orders accordingly.
68Ms Malobabic, any issues, ambiguities, with regards to the sentences imposed?
69MS MALOBABIC: No, Your Honour. It is clear.
70HIS HONOUR: Thank you. Ms Brown?
71MS BROWN: No, Your Honour.
72HIS HONOUR: Yes, all right, thank you. Ms Brown, no doubt you'll speak with your client with regards to that sex offender registration documentation, which will make its way to your client in due course.
73MS BROWN: Yes.
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