Director of Public Prosecutions v Thwaites
[2023] VCC 523
•5 April 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Sexual Offences List
Case No. CR-22-01259
Indictment No. M12168106.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GREGORY THWAITES |
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JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 February 2023 | |
DATE OF SENTENCE: | 5 April 2023 | |
CASE MAY BE CITED AS: | DPP v Thwaites | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 523 | |
REASONS FOR SENTENCE
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Subject:Criminal Law
Catchwords: Sentence – Indecent assault upon a child under 16 – Historical sexual offences – Victims known to the offender – Significant impact on victim – Representative charges – Early plea of guilty – Age as a mitigating factor – Ill physical health – Significant time between offending and sentencing – Totality principle important sentencing consideration – Suspended sentence as an available disposition
Legislation Cited: Crimes Act 1958 – Sentencing Act 1991 – Sentencing Amendment (Abolition of Suspended Sentences and Other Matters) Act 2013
Cases Cited:Adamson v The Queen (2015) 47 VR 268 – R v G [2009] 1 AC 92 – Talbot (a Pseudonym) v The Queen [2016] VSCA 218 – DPP v Toomey [2006] VSCA 90 – R v Sposito Unreported, Court of Criminal Appeal, 8 June 1993 – R v MJ [2000] VSCA 66 – Sayer v The Queen [2018] VSCA 177 – Mill v The Queen (1988) 160 CLR 59 – R v Kilic (2016) 259 CLR 256 – DPP (Vic) v Dalgliesh (a Pseudonym) (2017) 262 CLR 428 – DPP v Zhuang (2015) 250 A Crim R 282 – DPP (Cth) v Thomas (2016) 53 VR 546
Sentence: Total effective sentence of imprisonment for 2 years and 6 months wholly suspended for an operational period of three years
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A Grant Mr S Kaiser | Abbey Hogan, Solicitor for the Public Prosecutions |
| For the Accused | Mr S Ginsbourg | Dribbin & Brown Criminal Lawyers |
HIS HONOUR:
1Gregory Thwaites, you have pleaded guilty to an indictment containing four charges of indecent assault upon a girl under sixteen.[1] The maximum penalty is five years’ imprisonment on each charge.[2] Charges 2 and 3 are representative charges.[3]
[1] Contrary to Crimes Act 1958 (Vic) s 55.
[2] Pursuant to Crimes Act 1958 (Vic) s 55.
[3] See DPP (Cth) v Watson (2016) 259 A Crim R 327, 362 [105] (Priest JA).
The Facts
2The prosecution filed a Summary of Prosecution Opening for Plea dated 16 January 2023, which I am told by your counsel I can treat as a statement of agreed facts for the purposes of sentencing you.[4]
[4] Exhibit P1 (‘Ex’).
3At the time of committing these offences, you were aged between 26 and 30 years. The first victim, Alicia Fox,[5] was aged between 11 and 14 years and the second victim, Belinda Collins,[6] was between 12 and 13 years old.
[5] A pseudonym used to protect the first victim’s identity.
[6] A pseudonym used to protect the second victim’s identity.
4You were a trusted friend of the victims’ families. You met the Fox family through your involvement with a church cricket club. The family allowed you to live with them while you were looking for your own home. You often drove the family to different places and would pick up Ms Fox from school.
5The Fox and Collins families often socialised together and the victims were friends. The victims’ parents were prominent members of the community. Through your association with the Fox family, you also became a family friend to Ms Collins.
6After residing with the Fox family, you moved to an apartment above a store on in the suburb of Malvern. The apartment is where you committed the present offences.
The offending
Charge 1
7In 1977 or 1978, you and Ms Fox were in your apartment. At the time Ms Fox was in Form 1 or Form 2 at school. She saw your penis. You took her hand and placed it on your penis. She withdrew her hand quickly.
Charge 2
8In 1978, when in Form 2, Ms Fox visited your apartment after a challenging day at school. You offered her a cup of tea and led her upstairs. She sat on a mattress, which was the only furniture available in the home.
9You took away Ms Fox’s cup of tea and placed a blanket over her. You reached underneath the blanket, pulled down her jeans and reached inside her underwear. Even when Ms Fox closed her legs, you separated them and continued to touch her clitoris and the skin around her vagina.
10In accordance with the agreed facts, you concede that the conduct I have described occurred approximately monthly.
Charge 3
11In 1978 or 1979, when Ms Fox was in Form 2 or Form 3, she was involved in an accident which required you to collect her from school. Instead of taking her to the hospital for treatment, you returned to your house.
12You put a blanket over Ms Fox’s lap and pulled her pants down. You inserted your fingers into her vagina and touched her clitoris.
13In accordance with the agreed facts, you concede that the conduct I have described occurred on more than one occasion.
Charge 4
14When Ms Collins was aged 12 or 13 years old, she visited your home with Ms Fox.
15You asked Ms Collins if she would like to see your pet snake and you took her to your room. You sat next to her on your bed and you eventually pushed her back onto the bed and attempted to climb on top of her.
16Ms Collins was able to escape from underneath you and she ran back into the lounge room.
17After this incident took place, Ms Fox moved to Sydney and did not see you or Ms Collins for a few years.
Police investigation
18The police began investigating this matter on 29 November 2019.
19On 5 December 2019, Ms Fox disclosed the sexual offending you committed against her. No further inquiries were made by the police at that time.
20On 10 September 2020, Ms Collins spoke to the informant. Her statement was completed on 15 September 2020.
21You were arrested at your home on 17 June 2021. You were taken to the Belgrave Police Station where the police conducted a record of interview. You were cooperative and made admissions.
22In your record of interview, you said that:
a. You knew Ms Fox and were associated with her family primarily through your participation at the church cricket club.
b. You were in your 20s when you were associated with Ms Fox and you believed her to be aged 13 or 14 at the time the offending took place.
c. You had what you described as a ‘slap and tickle’ relationship with her, which lasted for 12 to 18 months, and while you did touch and cuddle her, you did not sexually penetrate her.
d. When you touched Ms Fox, it would generally be over her clothing or inside her underwear.
e. In relation to charge 1, you had no recollection of Ms Fox touching your penis but if she had, no stimulation would have occurred and she would have only casually touched your penis.
f. In relation to Ms Collins, you knew her because she was Ms Fox’s younger friend.
g. You also had a ‘slap and tickle’ relationship with Ms Collins and you did not attempt to sexually penetrate her nor did you have any recollection of the events relating to charge 4 taking place.
23You were subsequently charged and required to attend the Melbourne Magistrates Court on 18 November 2021. You were committed to the County Court on 15 July 2022 and entered a plea of guilty.
Victim Impact
24Two victim impact statements (‘VIS’) were tendered, one made by Ms Fox[7] and one made by Ms Collins.[8] At your request, the prosecution agreed to make deletions to parts of Ms Fox’s VIS and your counsel took no exception to the contents of Ms Collin’s VIS. I have had regard to the aspects of both VIS that are agreed and relevant to your offending conduct.
[7] Ex P2.
[8] Ex P3.
25I also note that the law presumes harm in circumstances where a child engages in sexual acts with an adult and consent, or ostensible consent, of a child to a sexual act with an adult is not a mitigating factor.[9]
[9] See Clarkson v The Queen (2011) 32 VR 361.
Ms Fox
26Ms Fox’s VIS was read aloud in Court by the prosecutor.
27You abused Ms Fox when she was in her early teenage years. You were an adult family friend and she trusted you. As a result she suffered depression which resulted in her being unable to properly pay attention at school, and she now feels as though her growth has been stunted.
28At the time of your abuse, she felt broken, scared, depressed and unsafe, all of which remains with her to this day. Your abuse has impacted her ability to retain friendships and sexual or romantic relationships. Ms Fox has been left feeling isolated and unable to trust others, particularly men. Throughout her teenage years and into adulthood, she felt she did not fit in and that she needed to run away. Ms Fox attempted suicide twice, before moving to Sydney in an attempt to escape you and her memories of your abuse of her.
29Ms Fox was diagnosed with post-traumatic stress disorder as a result of the abuse. She turned to coping mechanisms such as over-eating and gained body weight at a dangerous rate. This led to her lungs collapsing and her going into cardiac arrest. Ms Fox still suffers from mobility issues due to her increase in body weight. She has also had issues with vaginal bleeding after the offending and recalled feeling as though you had broken her hymen.
30Ms Fox had been anxious to tell anyone about the abuse, but now feels as though these court proceedings have given her the opportunity to finally express how your abuse has affected her.
Ms Collins
31Ms Collin’s VIS was also read aloud in Court by the prosecutor.
32Ms Collins trusted you because you were an adult family friend. She was only a young child at the time of the abuse. She feels your offending led to her losing her innocence and what she refers to as her ‘joyful naivety’. She felt an overwhelming sense of guilt and blamed herself for your actions. Ms Collins continues to feel the anxiety she did at the time of the abuse.
33She considers your abuse of her can be linked to her over consumption of alcohol, as well as her promiscuity in her teenage years. As a consequence of your abuse, Ms Collins has spent her life feeling distrustful of men.
Discussion of victim impact
34In Adamson v The Queen,[10] the Victorian Court of Appeal quoted with approval from the judgment of Baroness Hale in R v G where Her Ladyship said:
More importantly, anyone who has practised in the family courts is only too well aware of the long term and serious harm, both physical and psychological, which premature sexual activity can do.[11]
[10] (2015) 47 VR 268, 280 [18] (Warren CJ, Redlich and Weinberg JJA).
[11] [2009] 1 AC 92, 108-9 [48]–[49]. See also Clarkson v The Queen (2011) 32 VR 361, 370–1 [32].
35The Victorian Court of Appeal has also reaffirmed the important role restorative justice plays in the criminal justice system. In Talbot (a Pseudonym) v The Queen[12] the Court approved the statement of Vincent JA in DPP v Toomey (‘Toomey’)[13] concerning the notion of social rehabilitation. In Toomey Vincent JA said:
It is well to bear in mind that the rehabilitation of the victim of sexual abuse may often be more difficult to achieve than that of the perpetrator. Frequently the damage will be profound and a long time will pass before it can be addressed at all. In the meantime, childhood will be destroyed, self esteem damaged, educational and career opportunities lost and the capacity to form and maintain relationships seriously impaired. The notion to which I have adverted underpins, I believe, such concepts as restorative justice, just punishment, the vindication of rights and the attribution of responsibility based on moral culpability. The vindication of the victim in cases of this kind, in particular, is profoundly important if the criminal justice system is to perform its role properly.[14]
[12] [2016] VSCA 218 [39] (Weinberg and Osborn JJA).
[13] [2006] VSCA 90.
[14] Ibid [22]. See also DPP v DDJ (2009) 22 VR 444, 454 [40] (Maxwell P, Vincent and Neave JJA) (‘DDJ’) and Pitt (a Pseudonym v The Queen [2020] VSCA 73 [52] (Priest and Weinberg JJA) (‘Pitt’).
36Accordingly, I take into account the impact of your crimes on Ms Fox and Ms Collins in sentencing you. Clearly, your offending has had profoundly traumatic and lasting effects upon your victims and their families.
Offence Seriousness
37Indecent assault upon a child under the age of 16 is a serious criminal offence carrying a maximum penalty of five years’ imprisonment. I consider these to be serious examples of the offence, particular charge 3.
38Your counsel conceded your offending is serious given that it involved a breach of trust; the victims were aged at least as young as 13; you were in your late 20s; the offending against Ms Fox included digital penetration; and the offending has had a deeply harmful and enduring impact on the victims.
39Sexual offending by adults against vulnerable children is a ‘most serious blight on society’.[15] The Victorian Court of Appeal, and its predecessor, have emphasised on numerous occasions the harm sexual offending against children causes to the innocent victims and the community at large.[16] As Hedigan AJA, adopting an earlier statement of Marks J in R v Sposito,[17] put it in R v MJ:[18] ‘A society which fails to protect its children from sexual abuse by adults, particularly those entrusted with their care, is degenerate’.[19]
[15] DPP (Vic) v Dalgliesh (a Pseudonym) (2017) 262 CLR 428, 447 [57] (Kiefel CJ, Bell and Keane JJ) (‘Dalgliesh’).
[16] See eg R v Wayland (unreported, Court of Criminal Appeal, Crockett, Southwell and Hampel JJ, 14 September 1992) 3–4 (Crockett J, Southwell and Hampel JJ agreeing); R v Sposito (unreported, Court of Criminal Appeal, Marks, Hampel and McDonald JJ, 8 June 1993) 4–5 (Marks J, Hampel and McDonald JJ agreeing); R v Ware [1997] 1 VR 647, 653 (Hedigan AJA, Winneke P and Hayne JA agreeing); R v Wakime [1997] 1 VR 242, 244 (Winneke P, Hayne JA and Hedigan AJA agreeing); R v WEF [1998] 2 VR 385, 387 (Winneke P, Charles JA and Hedigan AJA); DPP v VH (2004) 10 VR 234, 237–238 [11], (Callaway JA, Buchanan JA agreeing), 241 [23] (Eames JA); DPP (Vic) v OJA (2007) 172 A Crim R 181, 196–7 [33] (Nettle JA, Ashley and Redlich JJA agreeing); DPP v CPD (2009) 22 VR 533, 546–547[54]–[56] (Maxwell P, Redlich JA and Robson AJA); DDJ 453–54 [36]–[40] (Maxwell P, Vincent and Neave JJA); DPP v TDJ [2009] VSCA 317, [14]–[19] (Maxwell P and Neave JA); Reid (a Pseudonym) v The Queen (2014) 42 VR 295, 310 [83] (Priest JA, Maxwell P and Whelan JA agreeing); Sutton (a Pseudonym) v The Queen [2015] VSCA 251, [25]–[28] (Maxwell P and Redlich JA).
[17] Unreported, Court of Criminal Appeal, 8 June 1993, p 4.
[18] [2000] VSCA 66.
[19] Ibid [17]. See also DPP v Toomey [2006] VSCA 90 [18]–[19] (Vincent JA) (‘Toomey’).
40Charge 3 is a particularly heinous offence because it involved penetration of the victim’s vagina with your fingers. In Clarkson v The Queen,[20] the Victorian Court of Appeal held that under the legislative scheme, a child under 16 cannot consent to sexual penetration. This prohibition has two purposes: protecting the child from harm that can come from premature sexual activity; and deterring adults who would contemplate having sex with someone under the age of 16. The prohibition is founded on a presumption that premature sexual activity will cause long term physical and psychological harm and is unaffected by the presence of apparent consent.
[20] [2011] 32 VR 361.
41The Clarkson presumption of harm is founded on the rationale that children will be harmed by and must be protected from ‘premature sexual experience of all kinds’.[21]
[21] See Adamson v The Queen (2015) 47 VR 268, 282 [22], 293 [58] (Warren CJ, Redlich and Weinberg JJA).
42In her victim impact statement, Ms Fox says: ‘The impact of sexual abuse was that I thought my vagina was broken’. By this, I take Ms Fox to mean she thought you had broken her hymen. However, on the evidence before me I cannot make this finding to the required standard.
43General deterrence assumes significant importance as a sentencing consideration,[22] as does denunciation of such conduct in order to preserve community standards.[23]
[22] See eg Browne (a Pseudonym) v The Queen [2015] VSCA 274 [71] (Robson AJA) (‘Browne’); Toomey [10] (Buchanan JA, Vincent and Nettle JJA agreeing); Ryan v The Queen (2001) 206 C.L.R. 267, 283 (McHugh, J).
[23] See Dalgliesh [129]; Browne [71] (Robson AJA); Toomey [10]; Ryan 283 (McHugh, J); DPP v G [2002] VSCA 6 [9]–[10] (Winneke P).
44It is also significant that charge 2 and charge 3 are representative charges. As the Judicial College of Victoria Sentencing Manual states:
A representative charge does not increase the maximum sentence, nor does it permit a disproportionate sentence to be imposed. But all other things being equal, a representative charge will generally result in a heavier sentence than a charge relating to an isolated incident. This is because it removes a mitigating factor from the offender, because they can no longer claim the offending was an isolated incident, and it puts the offence into context.
It does not mean the offender is sentenced for uncharged acts, but rather that those acts are ‘directly and highly relevant to the objective gravity of the particular offence’ for which they are being sentenced. The gravity of the offending is heightened because the conduct in question is not isolated and because the impact on the victim is likely to be much greater.[24]
[24] 2.4.4 (online) (citations omitted).
45Your offending conduct involved gross breaches of the trust you owed the victims and their families as a trusted family friend. There was a very significant disparity in age between you (aged between 26 and 30) and your young victims (aged between 11 and 14). I accept a degree of grooming was involved in the case of Ms Fox. In all the circumstances, I assess your moral culpability to be vey high.
Personal Circumstances
46You were assessed by Pamela Matthews, a Forensic Psychologist engaged by your legal representatives, on 1 March 2022 and 21 March 2022. Ms Matthews prepared a ‘Psychological Report’ dated 10 April 2022, which was tendered at the plea hearing by your counsel.[25]
[25] Ex D3.
47You were born in June 1950 and are currently 72 years of age. Your parents separated early in your life. You told Ms Matthews that you did not have a relationship with your father and that your mother was supportive but emotionally distant. Instead, you were primarily attached to your maternal grandmother and you were raised in a strict Methodist household. You lacked distinct male figures to look to for guidance and throughout your childhood you found making friends difficult. You recalled to Ms Matthews several instances where your childhood was particularly challenging, including being sexually molested at a bus stop when aged ten years.
48In 1968, your mother married your stepfather, however you did not initially live with them and instead remained living with your grandmother. It was only when your grandmother entered nursing home care, and you became significantly ill, that you commenced residing with your mother and stepfather. You lived there for two and a half years before moving into a share house.
Education and employment history
49You completed primary school and attended two secondary schools, one of which provided you with a scholarship. You told Ms Matthews that you were an average student who liked to play the ‘class clown’ and when you began participating in your secondary school’s football team, your social life improved. As I previously described, your health deteriorated significantly, resulting in you needing to take time away from school. Eventually, you repeated Year 12.
50After repeating Year 12, you were able to commence a science degree at Latrobe University. You completed 18 months of this degree before dropping out.
51On leaving secondary school, you obtained work as a computer trainee, where you learnt about programming. You also worked as a pricing clerk and a clerical assistant for three years. After you decided to leave university, you worked with British Petroleum. Three years later, you worked in accounts payable at Rosella Lipton and because of your interest in computing, you were promoted. In the 1980s, you resigned your position and worked as a freelance bookkeeper and consultant.
52From 1989 to 2000, you continued to work as a bookkeeper and computer systems operator, while also undertaking a accounting course at night at TAFE. In the mid-1990s, when you were in your mid-40s, you became your mother’s carer as she developed dementia. After your mother passed away, you returned to part-time and freelance work.
53Throughout your employment history, you have faced significant health conditions which have affected your ability to work. Eventually, after suffering from a heart attack in 2000, you moved in with your stepfather and did not return to work.
Substance use
54You disclosed a history of drug use to Ms Matthews. You reported that you have smoked cannabis for many years, beginning at the age of 23. You told Ms Matthews that you smoked once a fortnight, but you ceased your cannabis use before you entered custody. You reported that you have not used cannabis since.
Physical health
55Ms Matthews reported that you have had a history of ill health, including glandular fever and suffering from a heart attack. Your counsel tendered a medical report from Dr Aloysius Law,[26] which outlines your current medical conditions including:
a. type 2 diabetes;
b. ischaemic heart disease;
c. peripheral vascular disease;
d. chronic bronchitis; and
e. chronic obstructive pulmonary disease.
[26] Ex D4.
56Dr Law’s medical report also noted that your past medical history has included:
a. a stroke in 2018;
b. an infected leg ulcer in 2016;
c. clot retrieval from your left-middle cerebral artery; and
d. a coronary artery bypass graft in 2001.
57You have been prescribed numerous medications to treat your illnesses.
Mental health
58Ms Matthews reported that you do not present with any signs of thought disorders, depression or psychosis, besides a period of low mood after one of your dogs passed away.
59Ms Matthews conducted three psychometric tests on you to evaluate your memory and cognition. These were:
a. Test of General Reasoning Ability, to measure your reasoning ability and problem-solving skills;
b. Mini-Mental State Examination test, to measure cognitive impairment; and
c. Rey Auditory Verbal Learning test, to measure your immediate memory span.
60Your performance on testing, according to Ms Matthews, does not suggest any cognitive impairment. You did note, however, that you experience some memory issues owing to your age.
61Ms Matthews found that your offending was consistent with a DSM-5 diagnosis of paraphilia (hebephilia 11-14 years), or sexual deviancy. It was indicated that your offending relates to intense sexual fantasies and urges involving sexual activity with post-pubescent children that you acted on.
62Overall, Ms Matthews assessed your insight to be present but egocentric. While you did tell Ms Matthews that you have admitted to the offending and been cooperative with police, the report highlights that you still perceive that the victims sought or consented to your offending. Ms Matthews reports, however, that you would benefit from counselling assistance in this area.
Prior criminal history and subsequent offending
63You have no prior criminal history. You do have subsequent convictions for two offences involving indecent assault on a male, one offence involving buggery with a person under the age of 14 and one charge of buggery, for which you were sentenced by his Honour Judge Gullaci on 8 December 2011. These matters are discussed below where I deal with the totality principle.
Mitigating Circumstances
64You pleaded guilty to four charges of indecent assault upon a girl under the age of 16 years on 15 July 2022, when you were committed to the County Court by way of a hand-up brief. I accept this plea is entered by you at the earliest forensically reasonable opportunity. The prosecution also accepts that the plea was entered at an early stage in the proceedings. This has saved both victims the immeasurable trauma of having to give evidence in this case.
65Your plea has utilitarian benefit, particularly in the COVID-19 environment.[27] Your plea also indicates your acceptance of responsibility for your offending conduct and a willingness to facilitate the course of justice. I also accept that, if you are imprisoned, you will experience a greater level of custodial hardship as a result of COVID‑19 restrictions which apply to all prisoners in this State for the foreseeable future.
[27] Worboyes v The Queen (2021) 96 MVR 344, 356–7 [22], [34]–[39], [2021] VSCA 169 (Priest, Kaye and T Forrest JJA); Chenhall v The Queen [2021] VSCA 175 [29]–[30], [33]–[35] (Priest, Kaye and T Forrest JJA); Tran v The Queen [2021] VSCA 278 [59] (Kaye and T Forrest JJA); Rossi v The Queen [2021] VSCA 296 [13]–[16], [19] (Priest and T Forrest JJA).
66While I accept you are undoubtedly regretful for the situation in which you find yourself and the effect this has had on you, there is insufficient evidence before me to make a finding in your favour that you demonstrate true contrition and remorse for your offending conduct, beyond what is evident from the plea itself.[28]
[28] See Barbaro v The Queen (2012) 226 A Crim R 354, 364–365 [32]–[38] ((Maxwell P, Harper JA and T Forrest AJA).
67Your counsel fairly conceded, based on some of the things you said to Ms Matthews when she interviewed you, you lack insight into the reasons behind for your offending conduct.
68I have had regard to the contents of the character reference provided by Mr Michael Fogarty.[29]
[29] Ex D5.
Age and physical health
69You are currently 72 years of age. Your age is a mitigating factor because:
a. Imprisonment may have an adverse effect on your health, as an elderly offender with serious and extensive health issues;[30]
b. You are less likely to pose a danger to the community due to your age;[31]
c. Imprisonment will represent an increased proportion of your remaining life expectancy;[32] and
d. Imprisonment is likely to be more burdensome on you than on a younger offender.[33]
[30] R v Iles [2009] VSCA 197, [19] (Lasry AJA).
[31] Ibid [22].
[32] R v King (1993) 66 A Crim R 74, 79 (Marks J, Southwell and Harper JJ agreeing); R v Vella [2001] VSCA 174, [18] (Buchanan JA, Callaway JA and O’Bryan AJA agreeing); R v RLP (2009) 213 A Crim R 461, 476 [39] (Neave and Redlich JJA, Hollingworth AJA) (‘RLP’).
[33] R v DD (No 2) [2008] VSCA 15, [19] (Neave JA, Maxwell P and Chernov JA agreeing); RLP 474 [32].
70The significant delay between your offending and sentencing is also relevant, considering you are older now than you would have been if you were sentenced closer to the time you committed the present offences.[34]
[34] R v AP [2009] VSCA 249, [6]–[10] (Maxwell P and Buchanan JA).
71This must be balanced against the effect the delay has had on your victims, and therefore cannot be my primary consideration.[35] As I have previously stated, your offending has had a considerable impact on Ms Fox and Ms Collins.
[35] R v DD [22].
72Age can never by itself excuse punishment.[36] Just punishment, deterrence and proportionality all remain important considerations, regardless of your age.[37]
[36] R v Bazley (1993) 65 A Crim R 154, 158 (Crocket, Hampel and Smith JJ); R v Belbruno (2000) 117 A Crim R 150, 153–54 [9] (Winneke P, Callaway and Buchanan JJA agreeing); R v Gregory [2000] VSCA 212, [21] (Winneke P); RLP 476 [39].
[37] RLP 476 [39]. See also Fichtner v The Queen [2019] VSCA 297, [90], [95] (Maxwell P and Kaye JA).
73Weight may also be given to your physical health as imprisonment could be a greater burden due to your illnesses.[38] There are no rules I must follow for particular illnesses or disabilities, and instead the weight I give to physical health is dependent on the circumstances in before me.[39] Your counsel, at the plea hearing, submitted that your health issues are serious and would make imprisonment more onerous on you than it would a normal healthy person. I accept this is the case.
[38] R v Eliasen (1991) 53 A Crim R 391, 396–97 (Crocket J, McGarvie and Phillips JJ agreeing) citing R v Smith (1987) 44 SASR 587, 589 (King CJ, Cox and O’Loughlin JJ agreeing) (‘Smith’).
[39] R v Van Boxtel (2005) 11 VR 258, 268 [33] (Callaway JA, Charles and Ormiston JJA agreeing); R v Hams (2009) 54 MVR 582, 588 [24] (Warren CJ and Redlich JA); Linou v Hayes (1988) 47 SASR 172, 176 (Perry J).
74As I detailed earlier, you suffer from conditions such as type 2 diabetes and the narrowing of your arteries. You have also previously suffered from a stroke. As a result, there may be a need for dietary management, physical therapies and other forms of treatment within prison, all of which have been found to increase custodial hardship.[40] I also consider that your pre-existing conditions may progress more rapidly while incarcerated[41] and the stress of being imprisoned may add further complications.[42]
[40] R v Grossi (2008) 23 VR 500, 518 [58] (Neave JA) (‘Grossi’); Price (a pseudonym) v The Queen [2018] VSCA 54, [7] (McLeish JA).
[41] Smith 589.
[42] Grossi 518 [58].
75Dr Law advised that you require regular appointments with both himself and other specialists to treat your active medical problems, and in his opinion, imprisonment would have a detrimental impact on your physical and mental health.
76Your ill-health and age reduces the weight I would otherwise have given to specific deterrence as a sentencing consideration.[43]
[43] Cardona v The Queen [2011] VSCA 58 [14] (Redlich JA, Nettle JA and Kyrou AJA agreeing) and the cases cited there.
Delay
77As I earlier observed, the effect of delay is a mitigating circumstance in your case. These offences were first reported over three years ago and you were interviewed and charged by police in relation to this offending on 17 June 2021. It is now nearly two years since you were charged. Some of this delay has been the result of the COVID-19 pandemic. More importantly, it has now been over 40 years since the end date of your last offence. You are now very much older, have significant health issues and you are an entirely different person.
78As the Victorian Court of Appeal observed in Rodriguez v DPP (Cth):[44]
Delay is normally relevant in two ways. First, it is relevant to rehabilitation that has occurred during the delay and the effect that has in turn on specific deterrence. Secondly, delay is relevant in the sense that the anxiety and uncertainty of having the prospect of a sentence hanging over one’s head during the period of delay is akin to punishment in itself.[45]
[44] (2013) 40 VR 436.
[45] Ibid 445–6 [36] (Warren CJ and Redlich JA) (citations omitted).
79You have very good prospects for rehabilitation You have not reoffended in any manner over the past 40 odd years.
80So far as delay akin to punishment is concerned, since you were charged in relation to these offences you have had the prospect of a substantial sentence of imprisonment hanging over your head. Undoubtedly, this would has caused you anxiety and stress. I take the punitive effects of delay into account in your favour.
Totality principle
81The application of the totality principle has a significant role to play in sentencing you for these offences. In 2011, you were sentenced in this Court for sexual offences committed against Ms Fox’s brother, Mr Simon Fox, from 1976 to 1979, which temporally overlaps with the present charges.[46]
[46] R v Thwaites, unreported, Judge Gullaci, 8 December 2011 (‘Thwaites’).
82Judge Gullaci sentenced you to a term of imprisonment of 4 years and 2 months, which you served in full. I was told you were refused parole because you had no home to go to upon release from prison.
83At the plea hearing in this case, your counsel submitted that, in applying the totality principle, I should pay significant regard to your having served the full sentence imposed in 2011. He relied upon the cases of Sayer v The Queen (‘Sayer’)[47] and Mill v The Queen (‘Mill’) [48] to support this submission. The prosecutor generally agreed with this submission.[49]
[47] [2018] VSCA 177 (‘Sayer’).
[48] (1988) 160 CLR 59 (‘Mill’).
[49] Ex P4.
84In Sayer, the appellant contended that he had lost the opportunity for concurrency because the offences were dealt with ‘over 30 years after they had been committed, in circumstances where two substantial terms of imprisonment had been served in the meantime for similar offences committed at about the same time’.[50]
[50] Sayer [60].
85The Court applied the principle outlined by the High Court of Australia in Mill that it was ‘necessary to take account of the sentence already served for the purpose of the whole of the second sentence and not only the non-parole period’.[51] Moreover, I must ensure that there is ‘no disproportion between the totality of the criminality and the totality of the effective length of sentences imposed’ so that the total effective sentence will ‘more closely correspond’ with the principle of totality.[52]
[51] Sayer [60] quoting Mill 64, 65–66.
[52] Gordon (a pseudonym) v The Queen [2013] VSCA 343, [74] (Redlich JA) quoted in Patil v The Queen [2020] VSCA 337, [65] (Maxwell, P, T Forrest and Weinberg JJA).
86When deciding how best to apply the totality principle in this case, a ‘just and principled’ approach must be adopted by me because you fall to be sentenced many years after the present offences were committed.[53] I must give real weight to your rehabilitative progress during and since the service of the earlier sentence.[54]
[53] Mill 66.
[54] Mill 64, 65-6 quoting R v Todd [1982] 2 NSWLR 517 519-20.
87I will apply these principles in sentencing you for the present offences. I accept that had you been sentenced by Judge Gullaci for this offending back in 2011, his Honour would have ordered a not insignificant measure of concurrency between the offences comprising the two sets of offending.
Prospects of rehabilitation
88I assess your prospects of rehabilitation are very good. You have not reoffended since the period spanned by the offences before me, including after your release from your sentence served in 2011. In my opinion, your risk of reoffending is very low.
89I accept Ms Matthews’s opinion that your continued rehabilitation will be facilitated by ensuring you continue to have uninterrupted stable housing, social support systems and medical management in the community. A period of imprisonment, to be immediately served, would be extremely counterproductive in the long term. [55]
[55] Ex D3.
Application of Sentencing Principles
90I have had regard to current sentencing practice in relation to the present charges as informed by the decisions of the High Court of Australia in R v Kilic[56] and DPP (Vic) v Dalgliesh (a Pseudonym) (‘Dalgliesh’)[57] and the Victorian Court of Appeal decisions in DPP v Zhuang[58] and DPP (Cth) v Thomas.[59] I have also considered the cases referred to by both parties in their plea submissions.[60]
[56] (2016) 259 CLR 256, 266–8 [21]–[25] (Bell, Gageler, Keane, Nettle and Gordon JJ).
[57] (2017) 262 CLR 428 (Kiefel CJ, Bell, Gageler, Keane and Gordon JJ).
[58] (2015) 250 A Crim R 282, 292 [30]–[31] (Redlich, Priest and Beach JJA). See also Williams (a pseudonym) v The Queen [2021] VSCA 35 [21]–[25] (Priest and Kyrou JJA) (‘Williams’).
[59] (2016) 53 VR 546, 606–609 [173]–[183] (Redlich, Santamaria and McLeish JJA). See also Williams [21]–[25] (Priest and Kyrou JJA); Russo v The Queen [2021] VSCA 244 [53]–[56] (Emerton JA, Priest JA agreeing).
[60] Summary of Prosecution Submissions for Plea Hearing [27]-[28] (Ex P4); Table of Comparative Cases (ex D2).
91When sentencing for historic offences the Victorian Court of Appeal has concluded that for the purposes of the Sentencing Act, ‘current sentencing practices’ refers to those in effect at the time of sentencing, not those which existed at the time an offence was committed.[61] The Court has also said that ‘current sentencing practices’ is not limited to the actual term imposed in a given case, but also includes ‘the weight and effect given to particular sentencing considerations in the exercise of the sentencing discretion’.[62] However, use of current sentencing practices must then take place alongside an awareness of the maximum penalty that applied at the time of the offending.
[61] See Stalio v The Queen (2012) 46 VR 426, 432–33 [11]–[12], 445 [78] (Neave and Osborn JJA and King AJA).
[62] See Mush v The Queen [2019] VSCA 307 [108] (Maxwell P and Kaye JA).
92While current sentencing practice is relevant to the sentences I impose on you, it is only one of a number of sentencing considerations I must take into account in imposing a just sentences in your case.[63]
[63] See Dalgliesh.
93Moreover, it is difficult to gauge more than a general yardstick from so-called ‘comparable cases’, given the wide range of offending conduct that can constitute the offence of indecent assault upon a girl under 16 and the myriad of personal circumstances pertaining to individual offenders. Nonetheless, to the extent I have been able to gain assistance from comparable cases, I have sought to do so in your case.
94You fall to be sentenced as a serious sexual offender for each of the offences before me. This is because you were sentenced by Judge Gullaci as a serious sexual offender on charge 3 in 2011 and the present offences are all ‘sexual offences’ as defined in the Sentencing Act.[64] Consequently, I must consider protection of the community to be the paramount sentencing consideration in this case. I note the prosecution do not seek a disproportionate sentence.[65]
[64] See Thwaites [32]. SA s 6B and clause 1(d)(xv) of Schedule 1.
[65] SA s 6D.
95Moreover, every sentence of imprisonment I impose on you must, unless I otherwise order, be served cumulatively on each other. In order to give proper effect to the totality principle,[66] I will order partial concurrency in your case.[67]
[66] See Gordon (a pseudonym) v The Queen [2013] VSCA 343 [74] (Redlich JA), cited with approval in Patil v The Queen [2020] VSCA 337 [65] (Maxwell P, Forrest and Weinberg JJA).
[67] SA s 6E.
96You are a registerable offender under the Sex Offenders Registration Act 2004 because you fall to be sentenced for one Class 1 offence[68] and three Class 2 offences as defined in that Act.[69] Registration is mandatory and the relevant reporting period is for life.[70]
[68] Sex Offenders Registration Act 2004 (‘SORA’) s 3 and Schedule 1 clauses 1, 6 and 13(ii).
[69] SORA s 3 and Schedule 2 clauses 5A and 26A.
[70] SORA s 34(1)(c)(i).
97The basic purposes for which a court may impose a sentence are just punishment, denunciation, deterrence, both specific and general, protection of the community and rehabilitation. In sentencing you, I must have regard to a range of factors, such as the seriousness of the offences, your culpability for them, the effect of your offences on the victims and your personal circumstances.
98I am required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure that, so far as possible, you are rehabilitated and reintegrated into society. Denunciation, general deterrence and just punishment must be given significant weight in sentencing you for these offences.
99For the reasons previously stated I do not consider any real weight needs to be given to specific deterrence and, other than in accordance with the serious offender provisions, protection of the community. I accept that your risk of reoffending is very low and your prospects for rehabilitation are very good.
100None of the present charges are part of the standard sentencing scheme, nor are they category 1 or category 2 offences as defined in the Sentencing Act1991.
101The parsimony principle requires I not impose sentences that involve your confinement unless I consider the purpose or purposes for which these sentences are imposed cannot be achieved by sentences that do not involve your confinement.[71]
[71] See Sentencing Act s 5(4).
102I consider your offending does require the imposition of sentences of imprisonment. However, I must determine whether those sentence need to be immediately served or should be wholly or partially suspended..
103Your counsel submitted the appropriate disposition is a sentence of imprisonment that is wholly suspended. The prosecutor accepted this disposition is open to me in all the circumstances of the case.
104While a suspended sentence is no longer a currently available sentencing option in most cases, if a finding of guilt is made in relation to an offence committed before the commencement of the Sentencing Amendment (Abolition of Suspended Sentences and Other Matters) Act 2013,[72] irrespective of when that finding is made, as is the case here, then the abolition of suspended sentences does not apply.[73]
[72] See Sentencing Amendment (Abolition of Suspended Sentences and Other Matters) Act 2013 s 6. The relevant provision commenced on 1 September 2013.
[73] See Sentencing Act 1991 (‘SA’) s 149D(5).
105In accordance with the suspended sentence provision as it stood immediately prior to its repeal,[74] I can impose a suspended sentence where the aggregate period of imprisonment I impose on you for all offences does not exceed three years.[75] A suspended sentence can be ordered for the length of the term of imprisonment or another period specified by the court, not exceeding three years.[76]
[74] SA s 27 as then enacted.
[75] SA s 27(2)(a) as then enacted
[76] SA s 27(2A) as then enacted.
106A suspended sentence should not be viewed as an unconditional release or a lenient sentence. Instead, it may be an appropriate method of reforming an offender and preventing reoffending.[77]
[77] DPP v Buhagiar and Heathcote [1998] 4 VR 540, 547 (Batt and Buchanan JJA).
107Section 27(1A) of the Sentencing Act, as then enacted, sets out several factors I must consider when deciding whether to make an order suspending a sentence. Most relevantly for present purposes, these factors include:
a. The nature of the offences and the impact the offending had on the victims, which I have already described in detail, to ensure the sentence adequately denounces the type of conduct you have engaged in and deters you and others from committing similar offences; and
b. Your risk of committing another offence punishable by imprisonment during the operational period of the sentence, if it were to be suspended. For the purposes of s 27, ‘operational period’ refers to the period for which the whole or part of the sentence is suspended. As I have already said, I find your prospects of reoffending, considering your age, poor health, rehabilitative attempts and Ms Matthew’s risk assessment of you, to be very low.
108After balancing all relevant sentencing considerations in your case, I consider that I should impose sentences of imprisonment which are wholly suspended.
Stand up Mr Thwaites
On charge 1 you are convicted and sentenced to 6 months’ imprisonment.
On charge 2 you are convicted and sentenced to 12 months’ imprisonment.
On charge 3 you are convicted and sentenced to 18 months’ imprisonment.
On charge 4 you are convicted and sentenced to 12 months’ imprisonment.
I direct that 2 months of the sentence imposed on charge 1, 4 months of the sentence imposed on charge 2 and 6 months of the sentence imposed on charge 4 be served cumulatively on the sentence imposed on charge 3 and on each other.
That makes a total effective sentence of 2 years and 6 months’ imprisonment.
I order that sentence is suspended for an operational period of three years.
There is no pre-sentence detention to declare in this case.
I declare you have been sentenced as a serious sexual offender on charges 1, 2, 3 and 4 and I direct that fact be entered in the records of the Court.
Pursuant to the provisions of the Sex Offenders Registration Act 2004, I order you comply with the reporting provisions of that Act for life.
In accordance with s 6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty, I would have sentenced you to a total effective sentence of four years’ imprisonment with a minimum non-parole period of three years,
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