Director of Public Prosecutions v Tanner (a pseudonym)
[2024] VCC 1172
•2 August 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NELSON TANNER (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE ELLIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 July 2024 | |
DATE OF SENTENCE: | 2 August 2024 | |
CASE MAY BE CITED AS: | DPP v Tanner (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1172 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Four charges of indecent act with child under 16 – one charge of indecent act with a 16 or 17 year old – plea of guilty following sentence indication – four complainants – complainants particularly vulnerable – offending calculated, protracted and severe – limbs 5 and 6 of Verdins not applicable – totality as an important sentencing consideration – combination sentence not appropriate – sentenced as serious sexual offender
Legislation Cited: Crimes Act 1958 (Vic); Crimes (Sexual Offences) Act 1991 (Vic); Crimes (Sexual Offences) Act 2006 (Vic); Crimes Amendment (Sexual Offences and Other Matters) Act 2014 (Vic); Sentencing Act 1991 (Vic); Sex Offenders Registration Act 2004 (Vic)
Cases Cited:The Queen v Verdins (2007) 16 VR 269; Stalio v The Queen (2012) 46 VR 426
Sentence: Total Effective Sentence: three years and two months' imprisonment
Non-Parole Period: two years and three months imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Dr. J. Harkess | Office of Public Prosecutions |
| For the Accused | Mr A. Pyne | Greg Thomas Barrister & Solicitor |
HER HONOUR:
1Nelson Tanner,[1] you have pleaded guilty to:
· four charges of indecent act with a child under 16 contrary to s47 of the Crimes Act 1958,[2] (Charges 1- 4). This offence carries a maximum penalty of 10 years' imprisonment; and
· one charge of indecent act with a 16 or 17 year old contrary to s49(1) of the Crimes Act 1958.[3] The maximum penalty for this charge is five years' imprisonment.
Charge 2 is a course of conduct charge.
[1] A pseudonym.
[2]As amended by the Crimes (Sexual Offences) Act 1991 (Vic) (charge 1); Crimes (Sexual Offences) Act 2006 (Vic) (charges 2 & 3); Crimes Amendment (Sexual Offences and Other Matters) Act 2014 (Vic) (charge 4).
[3]As amended by the Crimes (Sexual Offences) Act 2006 (Vic).
2You entered a plea of guilty following a sentence indication.
3The circumstances of the offending are set out in a Summary of Prosecution Opening for Plea dated 17 July 2024.
4You are currently 56 years old. The offending occurred at various times between 2002 and 2016, when you were aged between 35 and 49 years. You committed sexual offences against four complainants, involving indecent acts with each of them, often by approaching them when they were asleep and using their hands to masturbate your penis.
5The first complainant is your niece Karina Best[4] who is the daughter of your sister Jody.[5] At the time of the offending, Ms Best was 13 years old.
[4] A pseudonym.
[5] A pseudonym.
6The second complainant is Lisa Harman,[6] who was aged between 11 and 12 when your first offended against her, when you were in a relationship with her mother, Adele Bullock.[7] You committed a further offence against her when she was 16.
[6] A pseudonym.
[7] A pseudonym.
7The third complainant, Kimberley Howe,[8] was best friends with Ms Harman in about 2012. She would regularly have sleepovers at the Harman home where you were living. At the time of the offending she was 13 years old.
[8] A pseudonym.
8The fourth complainant, Lindsey Edwards,[9] is your sister Jody’s daughter. At the time of the offending she was 10 years old.
[9] A pseudonym.
Complainant Karina Best (Charge 1)
9In around 2002 to 2003, Ms Best was living at an address in Reservoir with her mother Jody, her brothers and a number of other people. There were four adults and nine children living at the address.
10During this period, you were living in a caravan park in Sydney Road, Campbellfield and would come over regularly to visit. Occasionally on a Saturday, Ms Best would go to work with you and would clean the lunch room. She enjoyed working with you at this time and described your relationship as 'pretty normal and good'.
11Ms Best then started staying in your cabin at the caravan park from the age of about 13 to escape the chaos of her home environment. You would come and collect her from home on a Saturday and she would spend the night. On the way to the cabin, you would stop and buy her a 20 pack of Peter Jackson Gold cigarettes and four raspberry Vodka Cruisers. Ms Best never told anyone this.
12When Ms Best started going to your house, you would hang out together and watch television, she would smoke cigarettes and drink. She enjoyed the peace and quiet. She would sleep on the foldout couch inside the cabin, and you would sleep in your bed, in the same room.
13Sometime after Ms Best began going to your home on weekends, her brother, Lucas,[10] also started spending the occasional weekend there. He would sleep on the same couch as Ms Best, and you would buy him Vodka Cruisers to drink.
[10] A pseudonym.
14While they were staying, you would drink Jim Beam or Woodstock cans and homemade grappa. You would smoke cigarettes and sometimes marijuana. Ms Best could never tell if you were drunk because you would drink all day, every day.
15Ms Best would often go to bed earlier than you and would fall asleep with her hand on top of the blanket. After about three months of her staying at your house every weekend, she began waking up in the middle of the night and her hand would be on your penis. She would feel you grab her hand and put it on your penis, and you would use her hand to masturbate your penis by putting your hand on top of hers and guiding her hand along the skin of your penis.
16Ms Best was scared and would pretend she was asleep because she did not know what to do. This happened every Saturday night for about six months and it was the same every time. On some occasions Lucas was on the foldout couch next to her, but she does not know if he was ever awake.
17After the occasions on which you would masturbate your penis with her hand, Ms Best would wake the following morning with money inside her pyjama sleeve or under her pillow. It was always a $20 or $50 note. The first time she received the money, she asked you what it was for, and you said, 'because you could'. This is relied upon as context and tendency evidence.
Charge 1: Indecent act with child under 16
18Turning now to specifically Charge 1.
19Between 28 November 2002 and 26 January 2003, on a Saturday afternoon, Ms Best attended a cinema with a friend from school. Ms Best recalled that the weekend prior to seeing the film she stayed at your house and on that occasion you used her hand to masturbate your penis. She does not recall how long the incident went for, but you used her right hand to masturbate your penis. She pretended to be asleep and froze. Although the evidence of the earlier acts are led as context, I must sentence you only on the basis of the conduct which comprises Charge 1 in relation to this offending.
Complainant: Lisa Harman
Charge 2: Indecent act with child under 16 (course of conduct)
20In around 2009 or 2010, you met Lisa Harman's mother, Adele. The two of you lived together at your house in Preston before moving to Thomastown. Lisa was about 11 years old when you moved to Thomastown. Whilst living there, her mother fell pregnant to you with your daughter Naomi.[11]
[11] A pseudonym.
21During the period of 2011-2012, whilst living in Thomastown, you began coming into Ms Harman's bedroom every night while she was asleep. She was aged between 11 and 12 at the time. You would come into her bedroom and she would wake and see you standing on the carpet near her bed with your pants down masturbating. You would grab her hand and rub your penis with her hand. She would feel what is said to be your semen in her hand.
22In the morning, Ms Harman would tell her mother that you had come into her room, and her mother would tell the complainant that you did so because her asthma was playing up. She felt that her mother would not believe her. Eventually, Ms Harman would look you in the face. She started pulling her hand away and would say 'What are you doing?'. You would reply, 'Your asthma is playing up'.
23On occasion, while Ms Harman was in her room watching a movie, you would come into the room and tell her to scratch your back. While she did this, you would sit on her bed masturbating (part of Charge 2).
24You would buy Ms Harman things that you knew she would like, including One Direction items. You would come into her room at night, touch yourself, and she would trash the thing that you had bought her.
25On a date when Ms Harman, her mother and sister went to Berrigan in New South Wales, you all stayed at a place with a pool. Ms Harman was in the pool and saw you playing with yourself. The prosecution have clarified that this is led for context.
Charge 5: Indecent act with a 16 or 17 year old child under care, supervision and authority
26In February 2016, you entered into a rental agreement for a property at Broadmeadows. You wanted your daughter, Naomi, to stay over because your nephew, Calvin[12] was also staying over. Ms Harman, then aged 16, decided to stay as well to look after her sister. She went to sleep on a single mattress on the floor in a bedroom. Ms Harman woke up and you were inside the room with your hands on your penis and your pants around your ankles. You were playing with yourself for about 15 to 20 seconds. Ms Harman said, 'Ugh are you serious?'. She then rolled over and went to sleep.
[12] A pseudonym.
Complainant: Kimberley Howe
Charge 3: Indecent act with a child under 16
27Kimberley Howe was friends with Lisa Harman. In around late 2012, when she was about 13 years old, she stayed at your house in Thomastown with Lisa. Ms Howe stayed there quite a lot, at least once a week or fortnight. The two of them were in Ms Harman's room. She had a double bed which was right up against the back wall and Ms Harman slept against the wall while Ms Howe was on the side facing the door. They fell asleep.
28Ms Howe woke up on her right side and there was something in her right hand. It felt slimy. It felt like skin. It was dark but when her eyes adjusted she saw you standing there shuffling yourself around. You appeared to be touching your pants around your waist area, apparently fixing your clothes up. Ms Howe told you to go away about three times before you left. When you left, she wiped her right hand on the bedsheets. There was something in her hand which she now knows to be semen.
29About 10-15 minutes later, you came back and you were peering through the bedroom door. Ms Howe told you to go away and you did.
30Ms Howe went down the hallway to Adele Bullock’s bedroom and told her what had happened. Ms Bullock did not seem to believe her. She called Ms Howe's mother, Leanne,[13] and her stepfather came and picked her up. Ms Howe told her stepfather in the car what had happened. He seemed grumpy that he had to pick her up and did not give her much of a response.
[13] A pseudonym.
31A few days after the incident, Lisa, her mother, Naomi and you came to Ms Howe's house. You apologised for what you did. You blamed the alcohol and said you were never going to drink again. Both of Ms Howe's parents and her younger brother were present.
Complainant Lindsey Edwards
Charge 4, indecent act with a child under 16
32In early 2016, when Lindsey Edwards was 10 years old, she lived in Reservoir with her mother and your sister Jody, and her siblings. You and your daughter, Naomi were staying at the house. You stayed for about a week or so, sleeping in the living room.
33One night, about a day or two after you began staying there, Ms Edwards went to bed at 7.00 pm. She fell asleep and woke up an hour or two later laying on her back. The bed was moving. She opened her eyes and looked over, and you were sitting on the bed close to the door facing the cupboard. The door to the bedroom was slightly ajar and was open enough for her to see that you were masturbating your penis with your left hand. She pretended to be asleep and did not move because she did not want you to know that she was awake in case you hurt her. She was terrified and wanted to scream and run away.
34Ms Edwards heard Naomi calling out for you from the lounge room. You stood up, pulled up your pants and went into the lounge. She waited until she knew you were around the corner and ran into her mum's bedroom, where she remained for the whole night.
35On 31 May 2016, a report was made to police regarding allegations of sexual offending against Ms Best. On 23 June 2017, you were arrested and transported to Fawkner police station, where you participated in a record of interview. Whilst you agreed with some aspects of Ms Best's statement, you denied allegations made by her against you. No further action was taken in relation to the investigation at this time.
36In October 2021, Ms Edwards disclosed sexual abuse to a welfare teacher at her school. Police were notified on 22 October 2021 and an investigation commenced. Allegations with respect to Ms Harman were also raised.
37In November 2021, whilst Ms Harman was making a statement, the allegations concerning offending against Ms Howe were also raised and a statement later taken from Ms Howe.
Procedural History
38On 24 February 2022, you attended the Moorabbin police station for a prearranged interview where allegations concerning Ms Harman, Ms Howe and Ms Edwards were put to you. You denied allegations of sexual offending. The investigation in relation to offending against Ms Best was then reopened.
39A filing hearing took place on 23 February 2023 and you were eventually committed to stand trial by way of straight hand-up brief on 1 September 2023. Following a series of administrative adjournments, the matter came before me for sentence indication in May 2024.
40On 28 May this year, I gave an indication which you accepted on 4 June. You were then arraigned on 14 June 2024. The plea hearing took place on 18 July 2024.
Prior Criminal History
41You have admitted a relatively limited prior criminal history. The prior offending dates back six years to this offending and involved three charges of behaving in an offensive manner in a public place.
Victim Impact
42I have received victim impact statements from each of the complainants. Each of the victims have articulately expressed the profound effect that your offending has had on each of their lives.
43Ms Best describes how she has trouble trusting people and that she has had issues with her mental health. She now lives in a constant state of vigilance over her life and her children's and is always looking over her shoulder. Instead of being an uncle who protected her, you violated her.
44Ms Harman details how your offending affects her daily life. She was unable to continue to go to school, which has had an impact on her employment prospects. She has experienced significant mental health issues, and has at times resorted to illicit drugs to cope with what you did to her. Ms Harman has panic attacks when she is out in public, and does not even felt safe showering in her own home. She now struggles to form new relationships with people, and it is difficult for her to provide for her young family. The struggle of dealing with what you did to Lisa has never left her. She says every day it would haunt her.
45Ms Howe suffers from sleepless nights and paranoia that someone is watching her as she sleeps. She describes how you made her feel different and abnormal from her friends, which isolated her from others, and the effect that this has had on her relationships with those around her. She too has since struggled with her mental health and her sense of trust in people has suffered.
46Ms Edwards describes the constant nightmares and frequent flashbacks that she has experienced since the offending. It has caused significant strains on the relationships with those around her and she now struggles with her body image and self-worth, all caused by your offending. She never feels completely safe anywhere.
47It is difficult to do justice to the victim impact statements but it is clear that your offending has had a resounding effect on each of these young women. I take that into account the impact that this offending has had on each of the victims.
Personal circumstances
48Turning now to your personal circumstances.
49These were set out in submissions filed on your behalf dated 17 July and in the psychological report of Gina Cidoni dated 17 May 2024.
50You were born in Preston and raised in Collingwood, growing up in a working-class household. Your mother worked for Kodak and as a seamstress. Your father also worked for Kodak and Australia Post, though he was injured at work and your family became a single income family.
51Your mother passed away when you were 22. You lost your father approximately 20 years later. You had a sister who passed away two years ago. You have described your childhood in positive terms, although your family was not financially well off. You have described your parents as loving and kind. Psychologist Gina Cidoni considers that the loss of each of your parents likely affected your emotional stability. These experiences influenced your patterns of thinking and behaviour, which combined with substance abuse, have caused significant issues in your life.
52Academically, you were an average student attending at various high schools and eventually at Bendigo TAFE. You completed Year 11. You commenced a four year apprenticeship which you did not complete, but this led to a long work history in blue collar jobs in the automotive industry. You later obtained qualifications as a brake and clutch mechanic.
53You have worked for decades in the automotive industry. You have extensive experience with exhaust systems and you are a competent welder. Your most recent employment has been with a tyre company, where you have fitted and selected tyres and performed wheel alignments. You also undertake general automotive maintenance on imported cars to ensure road worthiness for the Australian market.
54You have had a number of long-term relationships. You have two daughters and a son but you are estranged from all of them. You lost contact with your eldest daughter following separation from her mother when you were in your early 20s. You were more involved in your son's life following separation from his mother but lost touch when they moved to Ballarat. You have had no contact with your daughter Naomi since 2017.
55You have had a longstanding and serious substance dependency. For many years you would drink a bottle of wine a day. You previously heavily used cannabis, which you commenced at the age of 16, as well as methamphetamines. You have been clean from methamphetamines and cannabis for three years. You are reportedly trying hard to withdraw from substance use and you seek to address your depression. You attend a psychologist in Clayton weekly. It is to your credit that you have recognised that there are issues that you need to address. Your substance abuse would appear to be significantly linked to your offending. This is an issue you will need to address and it will also be important for you to engage in programs to reduce your risk of re-offending.
56In recent years you have been in shared accommodation. Two of these share houses were dangerous and you were assaulted. You now live in a modest share house in Clayton and have been working six days a week until your remand in custody. Your employment is an important part of your identity.
57You were reportedly diagnosed with anxiety and depression by your GP in 2015 and prescribed antidepressant medication. You also saw a psychologist for anxiety and alcohol withdrawal.
58As I have said, I have received a report from Gina Cidoni. She opines that you meet the criteria for Alcohol Use Disorder, and diagnosis of Persistent Depressive Disorder and Anxiety Disorder.[14] She recommends continued treatment with a structured relapse prevention plan, noting the importance of addressing the factors that contributed to the offending such as substance abuse, mental health issues and unstable environments.
[14] Psychological Report of Gina Cidoni [73].
59Ms Cidoni opines at paragraph 80 that 'imprisonment can significantly impact' you. That 'your risk of relapse could be heightened because prison will exacerbate your symptoms of persistent sadness, hopelessness and low energy', as well as your anxiety and nervousness. She opines that 'being isolated from support systems could worsen' your depressive symptoms and increase your anxiety. She is also of the view that incarceration may hinder your reintegration, which could further increase your stress and risk of reoffending.[15]
[15] Emphases added.
60Your counsel, Mr Pyne submits that having regard to Ms Cidoni's opinion, and despite her use of the word 'can' at paragraph 80, that a jail term may weigh more heavily upon you than a person in normal health and further that there is a significant risk that your depression will further deteriorate in custody. However, I do not accept that limbs 5 and 6 in the matter of The Queen vVerdins are enlivened here.[16] I agree with the prosecution that Ms Cidoni's opinion is too equivocal to enable me to conclude that limbs 5 and 6 have application here. I am not satisfied that your condition will weigh more heavily upon you than someone without your mental health issues. I cannot conclude that there is a serious risk that imprisonment would have a significant adverse effect on your mental health. I accept that there may be a deterioration of your depression but I do not consider this is sufficient to enliven limb 6 of Verdins.
[16] (2007) 16 VR 269 (‘Verdins’).
61Having said that, your mental health is still relevant when considering your personal circumstances and I take into account the diagnosis of depression and anxiety, and in general the diagnosis of Ms Cidoni. I accept that the prison environment may not enable you to access the same treatment you have been receiving and no doubt this has given rise to some anxiety.
62Ms Cidoni assessed your risk of violent recidivism, including sexual violence using the Sex Offender Risk Appraisal Guide (SORAG). You reportedly fall into risk category 3 which reflects a low to moderate risk of re-offending.
63There is no evidence before me that you have any insight into your offending. The only evidence of remorse is reflected in the fact that you have pleaded guilty and accepted responsibility for your offending. In fairness, Ms Cidoni's report does not address your account of the offending because it was prepared in anticipation of the sentence indication hearing, and at that time you had not entered a plea of guilty.
Delay
64Mr Pyne submits that there has been a substantial delay in this matter. The offending first began over 20 years ago and ceased in 2016. The first report was made to the police by a single complainant in 2016 and the next report made in 2021. You were interviewed by police in February 22, but were not ultimately charged until 2023. I take into account this delay.
65I accept that up until your plea, you continued to work despite the anxiety associated with these matters hanging over your head. Whilst I understand you have some matters pending relating to alleged indecent exposure or indecent behaviour, these are yet to be dealt with in the Magistrates' Court. The prosecution brought these matters to my attention insofar as they may have relevance to your prospects of rehabilitation.
Prospects of rehabilitation
66Your counsel has submitted that your prospects of rehabilitation are fair, taking into account the stability of your employment, and the 'low to moderate' risk of reoffending as opined by Gina Cidoni.[17] I accept this. The fact that you have been a hard-working member of society is to your credit and there is no reason that this could not continue upon your release from custody. If you obtain the counselling and treatment you need, your prospects of rehabilitation will be enhanced.
[17] Psychological Report – Gina Cidoni dated 17 May 2024.
Plea of Guilty
67I take into account your plea of guilty. The plea has been entered at a somewhat early stage. The matter proceeded to this court by way of straight hand‑up brief. None of the complainants have had to give evidence. The plea demonstrates a willingness to facilitate the course of justice and is of considerable utilitarian value. You have spared the community and importantly, each of the victims and other witnesses from having to give evidence at trial.
Nature and Gravity of Offending
68Turning now to the nature and gravity of the offending. Mr Tanner, you violated multiple young teenage or pubescent girls. The law recognises that children will be harmed by indecent acts of this nature and they must therefore be protected from premature sexual experiences such as these. Your counsel has appropriately acknowledged the severity of these offences.
69Your offending occurred at various stages over a significant period of 13 years, spanning from November 2002 to May 2016. As the prosecution have pointed out, there was a significant age disparity between you and each of the victims. There were four separate victims, which indicates that this was not isolated conduct.
70Each of your victims were young girls, aged mainly between 11 and 13. Much of the offending occurred in the homes of your victims, a place where each child deserved to feel safe. There was a profound breach of trust in almost each instance, particularly with respect to your stepdaughter and your nieces. In each case your offending was carried out in silence and under the cover of darkness. There is a recurrent theme between the charged offences both with respect to the offending behaviour and the way in which you carried it out. You were only concerned about your own sexual gratification at the expense of these vulnerable children.
71Charges 1, 2, and 3 involved you using the complainant's hand to masturbate your penis, and certainly in relation to Charges 2 and 3, until you ejaculated into their hand. Each victim was in bed asleep, and awoke to your penis in their hand, in relation to Charges 1, 2 and 3. They were entitled to sleep safely, free from your perverted desire for self-gratification. In relation to Charges 4 and 5, you again sought your own gratification by masturbating in the presence of your victims.
72I note that the offending with respect to Ms Best and Ms Harman occurred against a background of uncharged acts which, although you do not fall to be sentenced in relation to those acts, help put the offending in context. Again, they illustrate that this was not isolated, aberrant behaviour.
73Charge 1 was committed against a vulnerable young victim who sought respite in your home. Ms Best trusted you. You repeatedly brought her cigarettes and alcoholic drinks and sought to reward her by giving her money. Similarly with respect to Charge 2, you attempted to appease Ms Harman by purchasing her things you thought she would like, whether that was to assuage your own guilt or to buy her silence or perhaps both. Either way, this was no doubt very confusing for an 11- or 12-year-old girl.
74Charge 2 is a course of conduct charge that covers the 12-month period from December 2011 until December 2012. That offending was protracted and routine, and certainly not spontaneous. At times, you purported to be checking on the victim's asthma in order to evade detection. You had the audacity to continue to offend against her on another occasion a number of years later.
75In sentencing you for a course of conduct charge, I must sentence you within the maximum penalty for the charged offence but I must also sentence you in a way that reflects the totality of your conduct. The plea of guilty must still be treated as entered to a single formal charge.
76In relation to Charge 3, the victim was at a sleepover with her friend at your house. The offending here was particularly brazen as it was committed in the presence of another one of your victims who was also asleep.
77Although Charge 4 did not involve you touching the complainant, Ms Edwards was young. Your 10-year-old niece. She too should have felt safe in her own home, free from being violated by an uncle, who was a guest in her home, conducting himself in this manner as she slept.
78Your behaviour against each of your victims and on this protracted basis over the period covered by the charges is indeed very serious and concerning behaviour. Your moral culpability in each case was high.
Totality
79You have pleaded guilty to five charges, as I have said, one of which is a course of conduct charge. Each offence to which you have pleaded guilty warrants individual punishment given that it involves distinct and serious conduct. However, there should be a degree of concurrency appropriate to satisfy the principle of totality. I must ensure that the totality of the sentences imposed is met with a just and proportionate sentence. Therefore, I have moderated to a degree the length of the individual sentences and the periods of cumulation.
Relevant sentencing factors
80The basic purposes for which a court may impose a sentence are just punishment, specific and general deterrence, rehabilitation, denunciation and protection of the community. In determining an appropriate sentence, I must have regard to these sentencing principles and I am required, pursuant to the Sentencing Act 1991 (Vic), to take into account various factors when formulating an appropriate sentence including the maximum penalties, the gravity of the offending, your culpability which as I said I consider to be high, the effect on the victims and your personal circumstances. I have also had regard to the principles of parsimony.
81General deterrence is an important sentence consideration when it comes to sentencing you for sexual offences against young victims. Other members of the community must understand that committing indecent, sexual acts in the presence of young children will not be tolerated. There is a need to protect the community from those who carry out these sorts of offences. This is particularly relevant in this case as you are to be sentenced as a serious sexual offender on Charges 3, 4 and 5. Just punishment and denunciation must also be given primary consideration. Although you do not have a relevant prior criminal history, specific deterrence must also be considered given the protracted nature of the offending and the number of victims against whom you have offended. To make it clear, the court indeed denounces your conduct.
82Although no comparable cases have been brought to my attention, I have had regard to sentencing practices, noting that self-evidently, every case is different. Here the first set of offending occurred in 2002 to 2003 and the last offending was close to eight years ago. In accordance with the principles in Stalio v The Queen[18], I have had regard to sentencing practices at the time of the offending for the purposes of ascertaining just punishment in accordance with the principle of equal justice.
[18] [2012] VSCA 120; (2012) 46 VR 426
83The prosecution submits that having regard to the gravity of your offending, a head sentence with a non-parole period is warranted. At the sentence indication hearing Mr Pyne submitted that it would be open to the court to place you on a community corrections order in combination with a period of imprisonment. I do not consider that a combination sentence would adequately reflect the gravity of the offending here, and as I indicated, I accept the prosecution's submission that a head sentence with a non‑parole period must be imposed.
Serious Sexual Offender Provisions
84Upon sentencing you to a term of imprisonment on Charges 1 and 2, you fall to be sentenced as a serious sexual offender on Charges 3, 4 and 5 pursuant to the serious sexual offender provisions within the Sentencing Act. Accordingly, the court must regard protection of the community as the principal purpose for which the sentence is imposed and may impose a sentence which is disproportionate to the gravity of the offending. Here, the prosecution are not seeking a disproportionate sentence.
85Pursuant to s6E of the Sentencing Act, sentences of imprisonment must be served cumulatively with any other sentence imposed unless otherwise directed by the court, and the court must also record the fact that the offender was sentenced as a serious sexual offender.
Sentence
86Mr Tanner, could you please stand.
87On Charge 1, you are convicted and sentenced to 1 year imprisonment.
88On Charge 2, you are convicted and sentenced to 2 years' imprisonment.
89On Charge 3, you are convicted and sentenced to 10 months' imprisonment.
90On Charge 4, you are convicted and sentenced to 6 months' imprisonment.
91On Charge 5, you are convicted and sentenced to 3 months' imprisonment.
Orders for cumulation
92I order that the sentence imposed on Charge 2 will be the base sentence.
93I order that 7 months of the sentence imposed on Charge 1 be served cumulatively on the sentence imposed on Charge 2.
94I order that 4 months of the sentence imposed on Charge 3 be served cumulatively on the sentence imposed on Charge 2 and other sentences imposed this day.
95I order that 3 months of the sentence imposed on Charge 4 be served cumulatively on the sentence on Charge 2 and other sentences imposed this day.
96I order that the sentence imposed on Charge 5 be served concurrently with the sentence imposed on Charge 2 and on other sentences imposed this day.
97This makes a total effective sentence of three years and two months' imprisonment. I fix the period before which you become eligible for parole at two years and three months.
Pre-Sentence Detention
98Pursuant to s18 of the Sentencing Act, I declare 15 days' pre-sentence detention as time already served to be deducted from the sentence that I have imposed.
99I declare that you are a serious sexual offender for on Charges 3, 4 and 5 and I will ensure this declaration is entered into the records of the court.
Sex Offenders Register
100Each of the Charges are Class 2 offences under the Sex Offenders Registration Act2004 (Vic). Where an offender has been found guilty of three or more Class 2 offences, the length of the reporting period is for the remainder of the offender's life.[19]
[19] Sex Offenders Registration Act2004 (Vic) s 34(1)(c)(iii).
101I therefore declare that having been found guilty of three or more Class 2 offences, you will be required to comply with the obligation imposed by the Sex Offenders Registration Act for the remainder of your life. Upon your release from custody, you must comply with your reporting and other obligations as I have said, for the rest of your life.
102I must advise you about the nature of these obligations under the Act and this is going to be provided to you by way of notification of your reporting obligations. You are going to be asked to read those obligations and I would anticipate your counsel will take you through them at a later stage.
Section 6AAA
103Finally, I indicate that pursuant to s6AAA of the Sentencing Act 1991 (Vic), but for your plea of guilty, I would have sentenced you to a total effective sentence of four years and three months' imprisonment with a non-parole period of three years and three months.
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