Director of Public Prosecutions v Taylor (a pseudonym)
[2019] VCC 888
•13 June 2019
,
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROY TAYLOR (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 May and 7 June 2019. | |
DATE OF SENTENCE: | 13 June 2019 | |
CASE MAY BE CITED AS: | DPP v Taylor (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 888 | |
REASONS FOR SENTENCE
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Catchwords: Incest. Half brother and sister. Long term course of conduct charges. Age at time of offending. Possession of child abuse material, over 4000 images upon arrest. Early plea; Valuable admissions. Increased burden (5th Limb)
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APPEARANCES: | Counsel | Solicitors |
For the Director | Ms Coombes | Office of Public Prosecutions |
| For the Accused | Mr Barratt | James Dowsley & Associates |
HIS HONOUR:
1 Roy Taylor[1], on 6th May of this year, you pleaded guilty to five charges laid on the indictment which had been filed in this Court, being three charges of incest, one charge of committing an indecent act with a child under 16 and one charge of possessing child abuse material. There is one summary offence to which you have also pleaded guilty, being an offence of failure to appear on bail. The prosecutor correctly detailed in her oral submissions the various offence maximum penalties here.
[1] A pseudonym
2 The indictment read in conjunction with the agreed summary spells out the factual basis of the charge and whether the charge is laid as a specific offence or on a course of conduct basis. Charge 1 relates to your brother and is a single event. Charge 5 relates to the collection of child pornography found upon your arrest in 2018. The three charges relating to your sister are course of conduct charges.
3 You are 33 years of age and you have no criminal history at all.
Facts
4 The detail of your offending is set out in Exhibit A, that is the written summary of prosecution opening dated 23 April of this year. Ms O’Brien who was acting for you as counsel, told me that this was an agreed statement of facts and in such circumstances, I really see no need to fully re-state the facts in these, my reasons. I will not stray beyond the agreed statement.
5 Your offending involves the specific act of incest (Charge 1) committed upon your then 6 or 7-year-old brother whilst you were babysitting him. You were young yourself of course at that point, only 14 years of age. Charge 2, 3 and 4 relate to offending against your sister. Those charges are each laid on a course of conduct basis and encompass the numerous acts either penetrative and hence laid as incest, or non-penetrative and hence encompassed by the indecent act charge. Those three charges span a 5-year period from when your sister was 11 to the point when she turned 16 years of age. I am dealing with acts occurring prior to her turning 16 which she did on 8 August 2008. Charge 2 relates to the indecent acts in that period as described in the summary. Charge 3 relates to the many occasions of penile/oral penetration in that same time frame and Charge 4, the very many occasions of digital vaginal penetration in that same period. It follows from the indictment and the summary that whilst you were 14 when you offended against your brother, you were between 17 and 22 years of age in the period covered by the next three charges. Not 23 as mentioned in the summary. You turned 23 in October 2008 and the end date for Charges 2 to 4 is 8 August of that year. The offending was unmistakably serious. The final charge relates to the significant enough collection of child pornography located upon your arrest on 11 January 2018.
6 The victim the subject of Charge 1 (your brother) spoke to you in July 2017 and told you he was recording the conversation. You made admissions to him and he went to the police a few months later. Your sister eventually provided a written statement on 22 February 2018 which was after you had been arrested on 11 January 2018 and after you had already made very complete admissions in the police interview.
7 You were bailed to appear at Court on 16 January 2018 but failed to appear. hence the related summary matter. The matter came up to this court by way of straight hand-up brief in September of last year with a plea listed in January of this year. That date was vacated at a mention called in December 2018 owing to some reports that had not yet been received and potential difficulties envisaged by your legal team as to the plea being ready in January. It was adjourned off to 6 May 2019. The matter was adjourned off yet again from 6 May on your application made before me. Your counsel had only recently received the brief. She had got it at quite late notice. There were a host of things that had not been done and that she believed needed to be done and you were far from blameless in this. I was told that you had at one point, turned up drunk at a psychological assessment and so the assessment could not proceed, and that you had not provided the key detail as to Mr Davies' role in your life, so it was with at least some misgivings that I adjourned the case from that date in May to 7 June. However, though it is plain that you should have done more to assist your legal team and hence yourself, I certainly did not want to shut you out or shut your counsel out from getting those materials and undoubtedly that was the correct stance having now seen the materials that have been obtained since.
Victim impact
8 I turn briefly to the impact statements that have been filed in this matter. I have read each victim impact again since the plea. They amply demonstrate why incest is such a serious and destructive crime. Your sister’s statement is a remarkable one, as she describes the various stages of impact upon her in the course of her life, all the many ways in which her life has been so altered by your conduct. Now, she did not want the statement to be read out aloud and so to that extent, I will take the cue from her and I will not descend to the detail of it in these, my reasons. I will say this though. There is a strong aspect of sadness in her looking back and seeing that her childhood and her innocence was stolen from her by you. Of there not being many happy memories when she looks back at her childhood. Your brother has evidently struggled with anxiety and feelings of sadness and anger. The impact here has been very large indeed for each of your siblings. Your conduct has really caused untold harm and has in a way, as you know, fragmented the family. It has damaged relationships and lives, the lives of those who you claim to love in the interview. I have regard to the entirety of the admissible portions of the impact statements.
9 I take into account the very sizeable impact of your crimes.
Submissions In mitigation
10 I turn now then, to the submissions made by your counsel.
11 Ms O’Brien conducted a sensible and realistic plea on your behalf.
12 She took me to your background in some level of detail. She also took me to a range of written materials filed on your behalf including a report of a neuropsychologist, Ms Evans, and one from a psychologist, Mr Newton and a bundle of case notes from your support worker, Mr Davies. There was also a written application to the National Disability Insurance Scheme which attached within it, a medical report from Dr Gidley, as well as a reference from your support worker, Mr Davies. There was an Orygen Youth Health Inpatient Unit discharge summary pertaining to an admission many years ago, (Exhibit 6) and also a recent letter of support from Mr Davies. Much of this was material that was gathered from the date of the adjournment in May and it is for those reasons that I am glad I had not shut you out from obtaining it.
13 In mitigation, Ms O’Brien relied mainly upon:
· Your early guilty plea;
· The presence of at least some remorse;
· Your high level of co-operation with the police;
· Your age at the time of the offending and the absence of any past offences or criminal record at all;
· An increased custodial burden in your case;
· She argued that you had at least some prospects of rehabilitation;
14 She conceded that this was serious offending and accepted that a significant prison term was required, one requiring the fixing of a non-parole period.
Crown Submissions
15 Ms Coombes, who appeared to prosecute argued that this was serious offending laid on a course of conduct basis in relation to three of these charges. There were significant periods of offending. She spelt out that which was plain enough from the materials, that some earlier uncharged misconduct in relation to your sister, had been discovered in 1998 or so by your parents, and you were punished at the time. Your own counsel had obliquely referred to that issue herself on the plea. The matters I am dealing with in relation to Charges 2 to 4, pertaining to your sister, therefore occurred after you had been punished and warned off when far younger. Ms Coombes argued that you had at least some power over your siblings, you were a good deal older than them and that alcohol was involved in one of the instances rolled into Charge 3. She accepted that remorse was not a simple issue here but seemingly conceded that there was evidence of at least some. She argued that general deterrence was a significant sentencing purpose and that you currently posed a high risk of re-offence. She took me to a couple of cases where sibling incest had been dealt with before the Courts, the cases of Holland [2018] VSCA 241 as well as the case of Joyner [2018] VCC 338. I have read those cases. No-one said they were on all fours and plainly they were not.
16 In all the circumstances, the Director of Public Prosecutions of this State argued that a term of imprisonment was required here. Well, that much had already been conceded by your own counsel.
Background
17 I turn then to your background. I accept the personal family background that has been placed before me and there is really no point my now repeating it all. It is contained in quite some detail in the reports of Mr Newton and Ms Evans. Ms O’Brien also took me to your background in her written outline marked as Exhibit 1 as well as in her oral submissions.
18 Briefly, you were born on 3 October 1985. You are now 33 years of age. You come from a complex blended family structure. Your parents separated when you were very young, three or so, as I understand it. Your mother re-partnered to a man who brought to that relationship two children. Your mother and your stepfather then went on to have two children themselves, being the two victims, your half siblings, who are 6 and 8 years your junior. Your schooling was obviously fragmented but you did complete VCE and you went on to do a couple of years of tertiary study before discontinuing that degree. You have worked only sporadically and not for a large number of years. You are on the disability support pension. You are single and you live alone. It appears that you have had no intimate adult relationships. Your sexuality is highly problematic, and you plainly have a sexual attraction to children which persists to this day. Your sexuality is described by Mr Newton as being profoundly disturbed. Unlike so many paedophiles, you admit that attraction in your discussions with Mr Newton.
19 There is much material in the reports of Mr Newton and Ms Evans as to your past psychiatric or psychological diagnoses, but it is based on your account of your history and you are plainly not a reliable historian. Mr Newton was of the view that you are exaggerating your symptoms. Mention is also made of your diagnosis of autism or Asperger’s syndrome but that seemingly is not supported by either of the experts in their written reports placed before me. However, the more recently obtained materials actually do support that diagnosis and I act on the strength of it. Dr Gidley speaks in a matter of fact way as to your diagnosis and he has treated you for some time. The diagnostic label by the way, is not the important issue for me. The way you are functioning is more important than any diagnostic label.
20 You are obviously an intelligent man. You are functioning at least intellectually at a very decent level according to Ms Evans. Your social skills are an entirely different proposition altogether and that is so however you may be labelled diagnostically. The police interview has an oddness to it with mention of your alter ego, Clara and your past interest in “Furries”. You are a rather odd person who does not easily fit in or socialise. That is probably a massive understatement. You are described by Mr Newton as eccentric and socially awkward. You have real problems establishing and maintaining intimacy with adults. Children are far less threatening to you. Social anxiety and worry is part of your makeup and no doubt, some of that is reactive to your legal predicament. You have provided conflicting and contradictory accounts as to alcohol use and abuse.
21 Aside from Asperger’s Syndrome, it seems likely you have an adjustment disorder with anxiety as well as personality disorders. You have a dysfunctional personality and clearly you meet the criteria for paedophilic disorder. You are relatively insightless into your offending with very limited abilities to reflect on the wrongfulness of your conduct and hence to feel any genuine remorse. In your Police interview, for instance, you suggested that your sister instigated the conduct at times or insisted it was okay. I am confident she did not.
22 You feel or have felt at times that this prosecution was unjustified. You endorse a range of dysfunctional and distorted beliefs about the sexuality of children and undoubtedly you present a high risk of sexual re-offending. You have been very worried about the court case and the outcome and so you should be. Your day to day life is very well portrayed in the bundle of case notes from your personal support workers which span a few years (Exhibit 5). I have read them all. Prior to adjourning this case in May, I did not have that material. Now it has been produced. Leading into my remand of you, it is plain from those materials that you have lived a very isolated, lonely, friendless and pretty strange and forlorn existence with much need for help, support and assistance on a day to day basis, and with really very few positives in your life. It is a bit grim to actually contemplate.
Guilty plea
23 I turn now then to the various matters raised in mitigation. The first of those is your guilty plea. You have pleaded guilty and you have done that at the earliest stage. Earlier still of course, you were extremely cooperative with the police. You made very damaging and valuable admissions, including making admissions in the taped conversation with your brother.
24 I accept that your plea of guilty must be met with a sizeable and appreciable discount. That is after all the law. There is a strong utilitarian value for someone pleading guilty at the stage that you did. It is very important that you have taken full legal responsibility for your offending and as early as you have.
25 Not everyone does plead guilty. Often enough, people charged with child sexual offences run the matter to trial and they take their chances before a jury. You have not done that. You have taken early and full legal responsibility for the crimes.
26 As a result of your plea, the community has been spared the time, the cost and the effort associated with a criminal trial in this court or a committal in the Magistrates' Court. You have facilitated the course of justice by pleading guilty and at that earliest stage. Importantly here, your victims have been spared the experience of being called and cross-examined in a court. That can be very stressful indeed and it has been of course, entirely averted here.
27 Additionally, I do take into account the level of admissions that you made. You had been arrested. You were being interviewed. Your conduct had by that point come to light courtesy of your brother speaking to you, recording those admissions and then going to the police. But not all of your conduct had come to light. At the time of the police interview they seemingly did not have a formal statement from your sister. You made admissions to misconduct against her and you did provide much information that the police were probably then unaware of, including of course even the admission in relation to your brother that founds Charge 1. That is not referred to in his statement. So, cases such as Doran [2005] VSCA 271, Latina [2015] VSCA 102, as well as Ellis [2005] VSCA 105, suggest that this sort of detailed admission of matters not then known to police, can be demonstrative of sincere or genuine remorse, indicative of good rehabilitation prospects and may even lessen the need for specific deterrence. The problem of course in this case, is that the expert materials placed before me, suggest there is little empathy, questionable remorse at best and a high enough risk of re-offence. That may all be so, but it seems to me that the making of the admissions is still a matter in mitigation and given the nature and the value of the admissions in relation to matters not necessarily in the hands of the police, I believe I must give some quite separate weight to those detailed admissions that you made, in accordance with those cases.
Remorse
28 I turn to the issue of remorse. It is not a simple business here. Ordinarily a guilty plea is indicative of some remorse, but that is not always the position. Of course, here I have that early plea. I also have the admissions made in the recorded conversation with your brother and the very detailed admissions made to the police. They themselves contain, what on their face might appear to be expressions of remorse. However, I also have expert evidence especially from Mr Newton, suggesting quite the opposite (see Para 31) and also indicating your preparedness to exaggerate or mislead. See paragraphs 10 to 13 of his report. Mr Newton says you expressed no remorse for your conduct or any empathy for the likely effects of your behaviour. There is a high degree of self-pity here and Mr Newton describes your account to him degenerating into a litany of your own problems which you considered to be exculpatory, punctuated by your repeated expressions of your belief that you were being unfairly persecuted for your conduct. Back in the police interview, sometimes you seemed to be recognising how wrong and damaging your conduct was, whilst at other times you were pointing to what you claimed to be your sister’s instigation and reminding the police of your age at the time of the offending (see Q476-479).
29 Ms Evans saw you later than Mr Newton and suggests that your claims as to remorse made to her may have been somewhat superficial.
30 Having reviewed all the materials, I don’t think you are revelling in these crimes. Nor though am I left with the impression that you are fully or even greatly remorseful for them. One of the impediments to feeling full remorse is I am sure, your totally warped and distorted view of children and sexuality. You also still have for whatever reason, a strong sense of being hardly done by in this matter being prosecuted. Much work lays ahead to change these distorted mindsets and until then, you are probably not capable of having or feeling full remorse. You are obviously a work in progress.
31 I will find as your counsel suggests, that there is at least some remorse here. It is not an overpowering emotion in this case, as it sometimes is. Indeed, I take the view that it is very limited indeed here, but some remorse is better than none and I take it into account in mitigation.
Expert reports
32 I have already mentioned many aspects of the reports of the neuropsychologist, Ms Evans and the psychologist, Mr Newton and I take those opinions into account. Also, Dr Gidley. I am not going to descend further to those reports or the case notes in any great detail. There is no reduction in criminal culpability to be found in those opinions or any of the more recent materials placed before me. Ms O’Brien was explicit in submitting that there was no realistic connection between the various conditions spoken of in the materials and this offending. I accept that submission. She went on though, to argue that only one of the principles from the case of Verdins that you heard discussed, had any application and that was the 5th limb of that case dealing with an increased custodial burden. You are presently a significant risk of re-offending, of that there can be no doubt, possessing as you do the warped and maladapted views you hold as to children and sexuality. You will need serious and long-term treatment and it will be no easy thing to alter your mindset. I accept though, that you will not fit in to prison at all with your Asperger’s Syndrome and on any view of it, an eccentric and egocentric interpersonal style. Prison will not be easy for you at all. I accept Mr Newton’s view that you will likely experience a difficult period of adjustment to prison life. So, I accept that the 5th limb of the case of Verdins has some application here. That is, that there is and will continue to be an increased prison burden owing to the conditions spoken of in those expert materials and the support worker notes, and I take that into account in your favour.
Rehabilitation
33 I turn now, then, to your prospects of rehabilitation. Your counsel argued that I should find that you have some prospects of rehabilitation. She argued that you had no prior criminal history, that you were remorseful to a degree and that you had pleaded guilty at the earliest opportunity. She conceded that which had to be conceded, that the expert opinion of Mr Newton was problematic. Plainly you had a sizeable risk of reoffence owing to your lack of insight and empathy and your paedophilic orientation.
34 You face a significant term of imprisonment which will obviously play some role in deterring you. I am confident that you will be required to undertake a sex offender's program. You will also have the significant bar to any further interaction with children posed by your lifelong liability under the Sex Offenders Registration Act 2004 that I will discuss later in these reasons. Four of these offences occurred in a setting of your living in a house with children. Those children being your step-siblings. That was many years ago of course. They have grown up. Living in a house with children, presumably will never occur again in your life, if you honour your obligations under the Sex Offender Registration Act. The 5th offence though, cannot be ignored. It occurred far more recently and discloses your recent warped mindset, as does the opinion of Mr Newton in his discussions with you. So this is not a case of some old aberrant behaviour with nothing occurring since and no present problematic issues. You still labour under this dysfunctional and warped sexual orientation and of course, you act on it given the existence of the child abuse material charge.
35 Mr Newton says that you are currently a high risk of sexual re-offence. I accept this opinion. He says that risk is significantly higher than the risk posed by a typical sex offender. I accept your counsel’s submissions as to your having at least some prospects of rehabilitation in the future. That is as high as I can put it. I really can only be quite guarded in this case, given the risk assessment.
Current sentencing practice
36 I take into account current sentencing practices. I have to be very careful about looking at other cases or statistics for a number of reasons. The Court of Appeal decision of Dalgleish [2016] VSCA 148 was critical of past sentencing practices for some instances of the crime of incest. That aspect of that decision was approved in the High Court. The Statistical snapshot for this crime, that is snapshot No.217 of 2018 relates to the far more serious examples of incest where the maximum penalty is 25 years. Sibling incest is actually excluded from that statistical study and that is of critical importance.
37 Rightly or wrongly, the fact is that sibling incest is plainly regarded by Parliament, as being far less serious. Parliament has provided only a 5-year maximum term of imprisonment for crimes such as yours, when charged as incest. The Judicial College of Victoria sentencing manual has a large number of overviews of sentences and summaries of many incest cases. See 31.11.3.1 & 2. But most of those sentences, virtually all of them, pertain to abuse committed by parents or step-parents or grandparents. So people with a much greater breach of trust and with that maximum period of 25 years. Offending by siblings was not commonly dealt with at all.
38 The prosecutor, Ms Coombes referred me to the case of Holland[2] also to the case of Joyner[3], a decision of one of my fellow Judges on this Bench. But having read them, even those cases are each very different indeed from yours. Joyner, for instance had offending targeting 3 sisters, but in the period when he was aged from 10 to 18. None of the offending was as significant in duration as yours. and importantly between 33 years and 40 years had passed with no suggestion of any current offending. So, a Judge in that case was sentencing in 2018 for offences that ended in the early 1980’s. You have offences committed years ago, true that is, but you also have the possession of child abuse materials which speaks of your current warped ideation. In the case of Holland the offender was only 2 years senior to his sister with one charge laid as representative of two events and one course of conduct or composite (as it was called) charge relating to three acts on a single day. He was judged to have a low risk of re-offence and good prospects of rehabilitation. He was sent to prison for a total effective sentence of 2½ years with a non-parole period of 15 months. 2 years imprisonment was imposed on one of those charges, the composite one and that, as I say, related to three acts on a single day.
[2] [2018] VSCA 241
[3] [2018] VCC 338
39 Another reason why caution has to be adopted when looking at other cases or statistical data and I have just mentioned it, is that I am dealing with you for course of conduct offending in three of these charges, two of which are incest. I must impose sentences reflecting the totality of the offending constituting the course of conduct, so that is for multiple incidents of that same conduct over the sizeable time frame of 5 years, albeit within the confines of a single maximum penalty. Necessarily then, sentences imposed for single instances of incest, or single instances of commission of an indecent act can provide no relevant guidance at all to my task. See Crawford [2018] VSCA 113, para 68.
40 No amount of looking at statistics or other sentencing outcomes in other cases can provide the answer to the correct exercise of my sentencing discretion in your case. Each case is very different, so too is every offender and what I have to do as a judge, is exercise my sentencing discretion in your case. One that has the lower maximum penalty owing to the sibling relationship but one with a sizeable period of course of conduct here. To that extent though, I really have to put from my mind the sort of numbers being discussed in cases such as Dalgleish and as disclosed in the Judicial College of Victoria materials generally. Those sentences were imposed for crimes with a much larger maximum penalty and typically a graver breach of trust.
Offence Gravity
41 None of this is to say that yours was not serious offending. Plainly it was. The crime of incest is viewed very seriously by the Courts for many of the reasons you seem to identify in your own interview. None of what I have said about the lower maximum at play here alters the impact of your crimes. It is no comfort at all to your siblings that you were their sibling and that therefore a lesser penalty comes into play.
42 The Court of Appeal in that case that I have mentioned, Dalgleish spelt out the seriousness of the offence and the reasons for it. Now again, it was dealing with a different variant there, the decision had views expressed as to parental responsibilities. That decision dealt with the misconception that seemed to have developed as to incest not being a crime accompanied by violence. Sexual penetration of a child is by its very nature an act of violence, they said. The Court of Appeal concluded that current sentencing practice did not reflect the objective gravity of the offending or the moral culpability of the offender. They spoke of some of the recurring themes in cases involving an offender with ongoing parental responsibilities towards a child under 18. So immediately, there we have that significant difference of course. You were no parent. You were, in relation to the offence against your brother, a child yourself, and so too at least at the start of the conduct against your sister. And you were a sibling. As I have said, so many of the cases relate to incest committed by a parent or stepparent with that strong familial breach of trust. Well, you were not a parent. You were a stepsibling and that removes this case from the gravest categories and of course, it exposes you to a far lesser maximum term here. Having said that though, some of the recurrent features commented on in the broader cases are present, being the invasion of the victim’s person, exploitation of a vulnerable child, violation of societal norms, long term and severe impact, breaches of trust and an undermining of the familial roots of society. All those exist to some degree here. You after all were 6 years older than your sister and were 17 years old at the start of the acts embraced by those charges against her. She was just 11 at the start.
Offence gravity
43 I must pay regard to the gravity of the offences before the court. There was the single act against your brother. He was 6 or 7. As I have said, three of these charges, those relating to your sister, are laid on a course of conduct basis spanning 5 years and embracing countless sexual acts. So for your sister, a very large chunk of her adolescence was greatly damaged by your pervasive and invasive conduct. Alcohol was on one occasion provided to her so that you could debauch her in the company of one of your friends. By that stage she was 13 or 14. Of course, you were much older.
44 I must have regard to the totality of your conduct. That is the nature of my task when dealing with course of conduct offences. I am not able to find much reduction in your culpability other than that posed by your age at the time.
Youth
45 I have mentioned your age and of course, that cannot be overlooked. You were only 14 at the time of the single act against your brother. So you were a child yourself and even at the commencement of the acts against your sister you were a child, though obviously a much older one at the age of 17.
46 That conduct though, continued well into adulthood, regrettably.
47 Your age must attract a level of reduction of culpability it seems to me. You were for Charge 1 and probably at least at the start of the next three charges, at an age when you were probably to some extent, exploring your own sexuality and without the full advantage of adulthood and adult views and values. However, I am satisfied that you knew what you were doing was seriously wrong and illegal. I am satisfied of that beyond reasonable doubt and I entirely reject your account.
48 I cannot judge your conduct as though you were at the time a fully developed adult and that is because you were not. At the time of the act against your brother, as I have said, you were a child yourself. One, whom had the matter come to light close to the events, would have been dealt with in the Children's Court, a very different system with a strong focus on rehabilitation and maintaining the child in the family and the community. Of course, that specialist jurisdiction is no longer available to you. You have lost both the potential advantage of the Children's Court sentencing process, and even the adult court considerations that may have led to the availability of a Youth Justice Centre disposition if you had been dealt with before your 21st birthday in relation to that matter.
49 I make very plain that this is in no way a criticism of the complainants in relation to not complaining swiftly. Your brother was a small child. He was 6 or 7. Your sister was only 11 or so when the conduct that I am dealing with started. Delay is the norm, especially in a family setting where there are so many obvious and compelling reasons why a child will not wish to complain and potentially fragment the family unit. It is why it is such a destructive crime. There is no standard response to conduct such as yours, and people react in a variety of different ways. Some people never complain at all. Some, not many, complain on the day and some after many, many years. The delay is very much a normal response, as we as judges are continuing to learn, and is brought about by a range of factors, including of course the tender age of a victim, an incomplete understanding at the time of the significance and the wrongfulness of the acts and a deep concern as to the impacts of disclosure. There can be fear of punishment for the victim or even concern for the position of the offender. Those sorts of things abound. There is a fear of breaking up the family unit. Well, your sister’s impact statement speaks eloquently of all of these matters.
50 Owing to your age though, I believe that the usual focus on specific and general deterrence must be moderated at least in relation to the single act against your brother. The fact is you did not have the moral culpability of an adult when you committed that crime or even the early acts against your sister because quite simply, you were not one. You were a child and your offending has to be seen in that light. See Sherritt [2015] VSCA 1, Better [2003] VSCA 71, Miller [2011] 1 VSCA 143 and Boland [2007] VSCA 242.
51 However, the acts continuing against your sister were unmistakably serious and other than at the early stages, they were committed by you as an adult. You knew it was very wrong indeed and you persisted in choosing to offend.
52 You have exploited your step siblings sexually. Your age at the time does not provide any comfort for them or alter the lasting impact which has been brought about by your conduct. You have of course warped and betrayed all those relationships. You have caused immeasurable harm and for whatever reason, you seem to have real difficulty understanding that. Your offending was undoubtedly serious and yet, you still as you sit there today, have a sense of injustice in finally being brought to account.
53 As to the child abuse materials, well they were possessed as a 32-year old man. Not as a child or teenager. Warped materials showing real children being offended against. Analysis showed images of child torture including an image of a baby being penetrated anally by a screwdriver. There is a chart as to the categorisation set out in the materials. Over 4,000 images with over 24 hours of films. Images of children aged from 3 to 10 being penetrated. I pay regard to those many authorities dealing with the way in which the seriousness of child pornography offences can be assessed including the case of Garside [2016] VSCA 774. See also the recent case of McNiece [2019] VSCA 78. But I could as easily cite from 20 other cases from our Court of Appeal. There have been many strong statements made in our Court of Appeal in this area. There is a strong public interest in protecting children. The authorities make clear that child pornography is not some victimless crime. Those images, they depict real children. Real children being exploited. Real children being tortured. The images only exist as a result of the market for such images. You were one of that vast number making up that market. This sort of conduct is clearly prevalent, and it must be very strongly denounced. General deterrence looms large in the sentencing task. Now there is no suggestion you were making the images or profiting from them or distributing them, but it is a large enough collection of serious images. It is a serious offence in its own right.
54 I have taken into account all of the submissions made by your counsel and the exhibits that have been tendered before me. I have also taken into account the submissions made by the prosecution.
Serious offender provisions/Totality
55 For the matters on the indictment, I will be sentencing you as a serious sexual offender from the time of the third sentence being imposed by this court. Under the serious sexual offender provisions contained within the Sentencing Act 1991, unless I otherwise direct, the sentences passed upon you from the third sentence would be then served cumulatively upon the earlier sentences imposed and upon each other and upon other sentences imposed by me. (See s.6E of the Sentencing Act 1991).
56 Additionally, for the sentences imposed from that point on, I must regard the protection of the community as the principal sentencing purpose. Now the court has under these provisions, the power to impose a disproportionate sentence in relation to such charges to achieve that purpose. I will not do so here. No one suggests that that power ought to be exercised and it will not be. I will not be passing any disproportionate sentences.
57 I am not though, free to ignore these serious offender provisions. They involve a modification of the principle of totality and I must give them their due weight. See Beyer v R [2011] VSCA 15, R v RHMC [2000] 203 CLR 452, HPW 2011 VSCA 88, and Hopson [2016] VSCA 303).
58 I must give weight to s.6E and the nature of your offending. It is clear that I still must pay regard to the principles of totality, though they are modified by this rule but totality is still important here.
59 I have given consideration to the overall effect of the sentences imposed by me. I have engaged in a last look at the overall effect in endeavouring to avoid a sentence that might be crushing upon you and to ensure that the overall effect is consistent with your overall actual criminality.
60 Quite aside from the presumption in favour of cumulation found in s.6E, there would be a need to cumulate portions of sentences here in any event. These were serious crimes. Serious separate criminal conduct. There were two different victims and for one of those victims, your sister, three charges spanning many years and embracing very many acts. Each broken down into that particular type of conduct with the Court required to have regard to all of it.
61 Then of course, I have the more recent possession of the child abuse materials. That is a different and a serious crime in a totally different era. In recognition of the principal of totality, as you will see, I am going to order significant enough measures of concurrency.
Principles
62 I turn then to some of the principles of sentencing. Sentencing is really never a simple or easy task. That is because there are a number of sentencing purposes and considerations that a court must have regard to. I must, in terms of sentencing purposes, give weight to denunciation, rehabilitation, the need for specific and general deterrence, community protection and punishment.
63
I have to take into account the maximum penalty. All the incests here have a
5 -year maximum term. There is an oddness to that, as obviously enough there will be some instances of section 50F sibling incest, where the offender is a much older sibling and the offence may bear all the characteristics of the most serious incest offences, see JCV 31.3.2.2. The fact is though, I am met with that 5-year maximum penalty here. That is the maximum and the oddness is demonstrated by the indecent act offence having a higher maximum penalty as does the child abuse materials charge.
64 I have to pay regard to current sentencing practices and to the impact of your crime upon the victims. I must consider your prospects of rehabilitation. They are not strong at all here.
65 I have to punish you justly and proportionately.
66 I must denounce your conduct. That is important. I do denounce your conduct. Whether you realise it or not, you have committed very serious crimes. Your conduct was wrong, it was destructive, it was damaging.
67 I must also consider the protection of the community from you. That is the principal purpose for those crimes where you are sentenced as a serious sexual offender. Community protection is obviously an important consideration here independent of that statutory requirement. The risk assessments in Mr Newton’s report tell me that much. You are a significant risk. Maybe that risk will reduce with counselling and treatment into the future. I do not know. It is too soon to know.
68 You must also be deterred. You must be dissuaded or deterred from ever committing such crimes as these ever again. You have no past relevant conduct, you pleaded guilty early and you have some level of remorse. You will be facing a significant period behind bars and it will not be easy for you in custody. Your offending occurred in the setting of your being able to access these children, your siblings. As I have said earlier in these reasons, that sort of thing is unlikely to recur given the limitations to any contact with any children thrown up by the Sex Offender Registration Act provisions. Against that there is the quite sobering opinion provided by Mr Newton and his risk assessment. You have real difficulty in feeling empathy. Specific deterrence is obviously of importance to my task. So too, community protection. You currently are a real danger.
69This court must also seek to deter others who are minded to commit this type of offending. That is known by us lawyers as the principle of general deterrence. It is a relevant purpose of sentencing for all the crimes for which I must pass sentence. The courts must send a strong and clear message to those in the community who may think it open to act as you did to family members, or to possess such materials as you possessed upon your arrest. The courts, by the sentences passed in these kinds of cases, must make clear to others that such conduct as yours will not be tolerated. General deterrence is a powerful enough purpose of sentencing here for all of the charges on this indictment bar the first charge, given your age at the time of that act.
Forensic sample
70I will deal now with those ancillary orders. Application is made for a forensic sample order. The first is the application for a forensic sample order. It is not opposed. I have signed that order and I now pronounce it in an abbreviated fashion. I order pursuant to s.464ZF(2) of the Crimes Act that you undergo a forensic procedure for the taking of a scraping from your mouth in accordance with the provisions of the Crimes Act, until a sample of sufficient standard is obtained for placement on the database. I am satisfied in all the circumstances, that the making of this order is justified owing to the seriousness of the offending, the fact that the order is not opposed, and that I judge it to be in the public interest. This relates to an approach that will be made to you in custody, someone in a position of authority will approach you to either run a swab around your mouth or get you to do it for that matter. It is not an invasive process. I have not authorised a blood sample. But they can use reasonable force to obtain the swab. In the event that there was any issue in terms of that, no doubt they would be back before me, making application for a blood sample but I have authorised the least invasive process at this stage. So it should not be an issue for you. So, I have made that order.
Disposal order
71I also have made and announce the disposal order. I am satisfied under the provisions of the Confiscations Act 1997 that it is appropriate to make the order that is sought for the disposal of the items set out in the schedule attached to that order. Again, it is no opposed. I am satisfied that the material is electronic material as defined in the provisions of the Crimes Act 1958 containing child abuse material and that the criteria for forfeiture is well and truly established here.
Sentence
72 I will hand down to each of you, so you can follow the particular sentences and the extent of cumulation and then concurrency. It is quite complicated given the Serious Offender provisions moving from concepts of cumulation, then to the extent of concurrency. So, I will hand that down to assist you.
73 If you would stand up then please, Mr Taylor?
74 The most serious offence in my view is Charge 3 on the indictment. Now I believe there are practical difficulties in terms of the Serious Offender provisions and cumulation in the event that I sentence on Charge 3 as the third sentence imposed by the Court, which is what I would be doing if I simply sentenced and followed the order of the charges on the indictment. It would be the base sentence. I would then have to otherwise direct in relation to that matter, whilst at the same time cumulating other parts of the sentences upon that base sentence. So, what I am going to do, is I am going to sentence first in relation to Charge 3, as it will be the base sentence here.
75 On charge 3 that is the course of conduct incest charge involving the many acts of unprotected penile/oral penetration of your sister over the significant period including the occasion where she was plied with alcohol and your penetration of her occurred in the presence of another, I convict and sentence you to 2 years and 3 months imprisonment. That 27-month term is therefore the base sentence.
76 I move now then back to Charge 1 and I recognise that the sentence imposed on that charge, Charge 1 may appear almost as derisory, following as it does upon the sentence imposed for the most serious charge, being Charge 3. I am not saying the conduct upon your brother was minor or did not have sizeable impact upon him. However for Charge 1, I am dealing with a single act, only that particular single act on your brother and one committed when you were a child yourself. On Charge 1, relating to that specific act of incest upon your brother when you were yourself but 14 years of age, I convict and sentence you to 8 months' imprisonment. On Charge 2, you fall to be sentenced as a serious sexual offender. That is the position for the remaining charges on the indictment from this point onwards. On Charge 2, which is the course of conduct charge relating to countless indecent acts committed upon your sister, I convict and sentence you to 21 months' imprisonment. On Charge 4, a course of conduct incest charge relating to the many acts of digital vaginal penetration of your sister, I convict and sentence you to 2 years' imprisonment. On Charge 5, possession of the child abuse materials, I convict and sentence you to 18 months' imprisonment.
77 On the summary matter of failure to appear, you are convicted and fined $300.
Cumulation in relation to matters not covered by s.6E
78 I now move to consider the aspect of cumulation and then I will move on to consider s.6E. Firstly I direct as to the level of cumulation. The base sentence, is the 27 months or 2 years and 3 months imposed on Charge 3. I direct that 5 months of the sentence imposed on Charge 1 is to be served cumulatively upon the base and other sentences, so to that point it amounts to 32 months or 2 years and 8 months' imprisonment.
Serious Offender from the sentence imposed on charge 2
79 I now move then, to the implications of the Serious Offender provisions. As I have sentenced you to terms of imprisonment on Charge 3 and then Charge 1, I have then sentenced you as a serious sexual offender in relation to Charges 2, 4 and 5.
80 I now have to make directions as to the extent of concurrency. That is the extent to which I otherwise direct or order under s.6E Sentencing Act 1991.
81 You will have difficulty following this but I will explain to you the effect of these orders at the end.
82 I direct then that 15 months of the 21 month sentence imposed on Charge 2 (plus 6 months) 17 months of the 2 year sentence imposed on Charge 4 (plus 7 months), and 12 months of the 18 month term imposed on Charge 5 (plus 6 months) are to be served concurrently upon the base sentence imposed on Charge 3 and the partly cumulative portion of the sentence imposed on Charge 1, and upon each other. It is then to this extent that I otherwise direct under the provisions of s.6E. That translates into an additional 19 months' cumulation upon the base sentence and part cumulative term imposed on Charge 1, though of course I have followed the legislative scheme in directing the measure of concurrency.
Total effective sentence
83 My order for cumulation and then my orders as to the extent of concurrency produce a total effective sentence of 51 months or 4 years and 3 months' imprisonment.
Non Parole period
84 I fix a period of 32 months or 2 years and 8 months during which you will not be eligible for release on parole.
Section 18
85 You have been in custody for 6 days. I order pursuant to the provisions of s.18 of the Sentencing Act that this period of 6 days be reckoned as already served under this sentence. That declaration is to be entered in the records of the court.
Serious offender status
86 You have been sentenced as a serious sexual offender in relation to Charges 2, 4 and 5. That fact is also to be noted in the records of the court.
Section 6AAA
87 I have told you that I have reduced the sentence courtesy of your guilty plea. Had you pleaded not guilty and been found guilty by a jury, I would have sentenced you to 6 years' imprisonment. I would have fixed a non-parole period of 4 years 3 months. That declaration made pursuant to s.6AAA is to be noted in the records of the court.
Sex Offenders Registration Act 2004
88 You have been sentenced by me in relation to various class 1 and class 2 offences, existing as they do under the provisions of the Sex Offender Registration Act 2004. You must comply with your reporting and other obligations under that Act for the remainder of your life upon your release from prison. I will shortly have handed to you a document that will explain your many obligations under that Act. You will need to acquaint yourself with it in due course. It is very important that you do. I will have you sign to acknowledge that you have received these explanations as to your responsibilities under the Act. But eventually you are going to need to study the provisions very carefully.
89 What you will learn when you read that document that will shortly be given to you, is that the Sex Offenders Registration Act 2004 imposes a number of conditions upon you. There are impediments to your future contact with children. There are impediments in terms of employment. What you must do is familiarise yourself with those requirements, as any breach of the Act or your reporting obligations under the Act, is itself a very serious criminal offence and one punishable by a significant term of imprisonment.
90 Mr Barratt, you will have seen these documents before. I am dealing with the notification of his reporting obligations. It is a lengthy document going down to him. It spells out all of his requirements under that Act. I am not contemplating he is going to sit there now and read it. He is simply being provided with this document and is being asked to acknowledge, by his signature, that he has received the notice under the Act. Do you understand that?
91 MR BARRATT: Yes, Your Honour.
92 HIS HONOUR: Will you go down with my Associate now and just have that document signed, please?. All right. Have a seat for a moment, Mr Taylor. Just two final matters. Are there any other matters I need to deal with? And secondly, did you follow the nature of those sentences and the structure of them and importantly, the mathematics of them?
93 MS COOMBES: Your Honour, yes I followed the structure of them. I am really just working through the mathematics of them myself at this stage. I just asked my learned friend if he had done the same, but we have not completed that task.
94 HIS HONOUR: Yes. Look, I have sat where each of you have sat and I think it is quite complex. If I am following the statutory framework, I am dealing with the extent of concurrency, whilst at other stages dealing with Cumulation. I think it becomes very confusing. Nonetheless, I have set it out in that way, but I have given you the document and I have gone through it fairly carefully myself. If there is any issue, you can raise it but the individual sentences are straight forward enough.
95 MS COOMBES: Yes.
96 HIS HONOUR: And I think so too, are the orders made as to both cumulation and then the extent of concurrency. They add up as far as I can see and anyway, you know what my intended effect is and if upon examination, there is some sort of mishap there, then you can list the matter back before me.
97 MS COOMBES: Yes.
98 HIS HONOUR: Any other matters I need to deal with at all?
99 MS COOMBES: No, Your Honour..
100 MR BARRATT: No.
101 HIS HONOUR: You will go down and see your client downstairs, Mr Barratt?
102 MR BARRATT: Yes, Your Honour.
103 HIS HONOUR: All right. That completes the matter then. Mr Taylor can be removed, thank you.
104 MS COOMBES: As Your Honour pleases.
105 MR BARRATT: As Your Honour pleases.
106 (At this stage the accused left the court.)
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