Director of Public Prosecutions v Turner (a pseudonym)
[2023] VCC 654
•27 April 2023
| IN THE COUNTY COURT OF VICTORIA AT melbourne CRIMINAL jurisdictION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DJANGO TURNER[1] (a pseudonym) |
To ensure that there is no possibility of identification of the victims, this sentence has been anonymised by the adoption of pseudonyms.
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JUDGE: | HIS HONOUR JUDGE DOYLE | |
WHERE HELD: | Melbourne | |
DATE OF PLEA: | 17 April 2023, 27 April 2023 | |
DATE OF SENTENCE: | 27 April 2023 | |
CASE MAY BE CITED AS: | DPP v Turner (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 654 | |
REASONS FOR SENTENCE
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Subject:Criminal Law – Sentence
Catchwords: Plea of guilty – six charges of incest – two victims aged between 10 and 13 at time of offending – biological daughters – no criminal history – standard sentence – Application of Bugmy principles – time in custody more burdensome – risk of deportation
Legislation Cited: Crimes Act 1958 as amended by the Crimes Amendment (Sexual Offences) Act 2016 s 50C(1); Sentencing Act 1991 s 6B, s 6D, s 11A(4), s 18; Sex Offenders Registration Act 2004; Migration Act 1958
Cases Cited:DPP v Walsh (a pseudonym) [2018] VSCA 172; DPP v G [2002] VSCA 6; DPP v Stevens (a pseudonym) [2021] VCC 1510; Bugmy v R (2013) 302 ALR 192; Worboyes v The Queen [2021] VSCA 169
Sentence: 12 years and 2 months imprisonment with a minimum non-parole period of 7 years and 10 months. Section 6AAA: 16 years and 2 months with a non-parole period of 11 years and 6 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms F. Holmes | Solicitor for the Office of Public Prosecutions |
| For the Accused | Ms J. Clark | Greg Thomas Barrister and Solicitor |
HIS HONOUR:
1Django Turner,[2] you have pleaded guilty to six charges of sexual penetration of a child or lineal descendant, which is an incest offence. The maximum penalty for this offence is 25 years' imprisonment. The standard sentence for this offence is 10 years' imprisonment.
[2] A pseudonym.
2You were born in October 1980, so you are now 42 years old. You were between 40 and 41 at the time of the offending and you were living at an address in Cranbourne with your wife Jane Turner[3] and your five children. The two victims in this matter are your biological daughters, Tala Turner,[4] who was born in March 2007, and Annie Turner,[5] who was born in January 2008. Tala was aged between 11 and 13 at the time of the offending and Annie was aged 10 at the time of the offending.
[3] A pseudonym.
[4] A pseudonym.
[5] A pseudonym.
3You and your family are originally from Samoa and moved to Australia from New Zealand in 2015.
Circumstances of the offending
4The circumstances of your offending were set out in the prosecution opening dated 10 November 2022, which was tendered as an exhibit at the plea hearing.
5Dealing first with the offending against Annie. On 10 May 2018, your wife returned from a trip to Samoa.
6One night between 10 May 2018 and 31 May 2018, Annie was asleep on her own in her bedroom. You entered her bedroom and started to touch her breasts over her pyjamas. You then removed her pyjamas and touched the outside of her vagina. After a short time, you penetrated Annie's vagina with your penis but you were unable to fully penetrate her because your penis 'got stuck' in the opening of her vagina. That is the basis of Charge 1.
7Shortly after, you heard a family member return home, so you told Annie to put her pyjamas on. You told her not to tell her mother about what you had done to her. You then left the bedroom.
8The next night Annie was asleep in her bedroom, this time with her siblings and cousins. You woke her and took her into her sister's bedroom where you were alone with her. You locked the door, removed her pyjamas, touched her breasts with your hands and then put her on the bed and got on top of her. You pushed your penis inside her vagina; however, because of the size of your penis, you were only able to penetrate her vagina for a 'short distance'. After this you told her to return to her bedroom. This incident is the basis of Charge 2.
9Between 1 July 2018 and 31 December 2018, Annie was playing outside with her siblings and some neighbours. You were in the master bedroom. Annie went into the house to get some water and you asked who was there. When she responded that it was her, you asked her to massage you. She agreed and got the massage oil from the laundry. She then went to the master bedroom and you told to her to close and lock the door, which she did. With the other children outside and your wife at work, the two of you were alone. Annie sat on the corner of the bed. You lay on the bed while she massaged your bare stomach with the oil. While this occurred, you squeezed her breasts over her clothing. You also touched her upper thigh over her clothing. You stopped touching her when you were interrupted by a knock on the front door. You told her to see who was there.
10After this incident you touched Annie's breasts and upper thighs on several occasions, 'week after week'. In around November 2018, Annie told Tala what you had been doing.
11These events from 1 July 2018 are put by the prosecution as uncharged acts. They provide a context to the charged acts in that it cannot be suggested that the only sexual activity you engaged in with Annie; however, I emphasise that you are not to be punished for what is described in that part of the opening, you are to be punished for the charged acts. But those uncharged acts provide context to the charged acts. That is their purpose in the prosecution opening.
12I turn now to the offending against Tala Turner.
13In the period between 1 January 2019 and 13 February 2019, Tala was socialising with her siblings and some neighbours in the living room of the house. You asked her to come to you in the master bedroom and scratch your back. You had driven your wife to work about an hour earlier.
14In the bedroom, you were naked with a blanket around the bottom half of your body. You were sitting down. You grabbed Tala, pulling her towards you so that she was standing in front of you. You made her open her shirt, which you removed, as well as her singlet top and bra.
15You rubbed her breasts, asking her why they were getting bigger. You could hear the noise from the other children in the house, so you took Tala into the ensuite. There, you removed the blanket so that you were completely naked. You told Tala to remove all her clothes. She did so because she was afraid of what you would do it if she refused.
16You then sucked her breasts and told her to lie down. You then lay on top of her and you put your penis inside her anus. This is the basis of Charge 3. You asked Tala if you were hurting her and she said that you were. Despite her response, you told her that it would be fine and you continued to penetrate her anus with your penis. She repeatedly told you to stop. After you withdrew your penis from Tala's anus, you took a shower and told her to get dressed. You told her that she had to promise not to tell her mother and that if she did something bad might happen. Tala made this promise before going to her bedroom, where she cried.
17The next day you took your wife to work. Tala and her sister Teagan[6] came with you. You returned home with Tala and Teagan. You told Tala to turn on the television to occupy Teagan and to come into the master bedroom. You closed the bedroom door and blocked it with a large speaker. You asked Tala if she wanted to 'do it again'. Tala said no because pre-marital sex was against her religion and she did not want to get pregnant. You held her hands and said that no one had to know and that you knew how to do it so that she would not get pregnant. As Tala continued to refuse to do anything with you, you started play fighting with her or 'tickling and tackling her' on the bed.
[6] A pseudonym.
18A few moments later, you removed her upper clothing and sucked on her breasts. You told her to remove the rest of her clothing and lay on the bed, which she did. You took your clothes off and got on top of Tala and penetrated her by putting your penis into her anus. This is the basis of Charge 4.
19After withdrawing your penis, you went to the en suite and showered while Tala went to another bathroom to shower. Afterwards, she watched some television with Teagan and then collected her younger siblings from school. When she came home, you told her she was not to tell anyone about what he had done to her.
20On another occasion on a Saturday whilst you were living in Cranbourne, after the incident where you were play fighting with Tala, your wife went to work and you stayed at home with Tala and her siblings. At around 2.00pm-3.00pm some children who lived nearby came over to play. It was a hot day, so they were spending time inside. You were half naked and wearing only your underpants. You told Annie and the other children to take the neighbours to a nearby park. You told Tala to 'stay back' and locked the front door.
21You walked into your bedroom and sat on the bed. Tala came into the room. She knew that you wanted her to remove her clothing and she complied and undressed herself. You told her to lie on the bed, which she did. You then inserted your penis into her vagina and sexually penetrated her. This is the basis of Charge 5.
22While you were sexually penetrating Tala, you asked her if she had kissed anybody yet and you asked her if she wanted to kiss you.
23She did not answer and you forcefully kissed her. You then continued to sexually penetrate her vagina with your penis. The penetration caused her pain.
24You then moved her lower on the bed and licked and sucked on her vagina, placing your tongue inside her vagina. This is the basis of Charge 6. Tala heard one of her siblings climb onto a chair that was outside the bedroom window and noticed that they had placed their hand into the room. You looked up and panicked. You told Tala to leave the room and you got dressed.
25She got dressed, left the house and met her sister Annie near the park. She told Annie that you had kissed her in a disgusting way, but she did not tell her that you had sexually penetrated her or sucked or licked her vagina.
26The Prosecution Opening then describes a series of uncharged acts relating to Tala again which are relied on for context to preclude the assertion that the charged acts occurred in isolation and really to provide an account of how the matters eventually came to police attention. Again, I emphasise you are not punished for these uncharged acts. The charges here are not representative, rolled up or course of conduct charges. This information is provided for contextual purposes.
27On an occasion after Charge 3, which was the first incident involving Tala, Tala says she was in the car when you took your wife to the train station. When you got home, you talked to her about what you had done and asked her if it felt good. You told her she should make her own family by the time she reaches 19 years of age.
28The next day she started secondary school in Cranbourne. In March 2019 she turned 12 years old and then a few months later the family moved to Roxburgh Park.
29Again, then the Crown Opening details that on 17 September 2019 you were at home with Tala and your wife. The other children were at school. While her mother was in the dining room arranging a parent/teacher interview for herself and Tala, you told Tala to come into the master bedroom and scratch your back. When she entered the bedroom, you were lying on the bed on your stomach. She sat on the bed and you moved so that you were facing her. You put your hands underneath her jacket, T-shirt and bra and rubbed her breasts. You heard noises from your wife and stopped touching the victim. Your wife then came into the bedroom and told Tala that she had booked the interview. Tala then left the bedroom to get dressed for the parent/teacher interview.
30A few months after that incident, Tala was at home with you and her siblings when you called them into your bedroom and asked them to massage you. After some time passed the other children left the room and she was sitting near your head massaging you. You then reached under her jumper and attempted to touch her breasts. She called her sisters Annie and Dianne[7] back into the room and you stopped trying to touch her.
[7] A pseudonym.
31On another occasion after the family had moved to Roxburgh Park, Tala was next to you and you started to rub her leg near her 'private part'. She made an excuse and left the room.
32There was another occasion where you offered to massage her and placed your hand on her body over the top of her jumper and touched her around the top of her breasts.
33In March 2020, she turned 13.
34On 10 August 2020 during an online conversation, she told a friend you had touched her sexually. She also told her sister Annie.
35On 11 August 2020 Annie and Tala told your wife about the offending. Later there was a discussion involving Annie, Tala, your wife and you about the allegations. You cried and knelt on the ground apologising, asking Annie and Tala for forgiveness.
36It was agreed that your wife and the children would move back to New Zealand and that you would stay in Australia, but this did not happen and the family stayed together in Australia.
37Then sometime between 1 October and 4 November 2020 Tala was in her bedroom talking with a friend online. You entered the bedroom and looked at the conversation. You thought she was talking to a boy. You put your hands under her T-shirt and bra and touched her left breast and tried to touch her right breast; however, she pushed her arms down to stop you.
38She told you to stop and you said she had to be quiet or her sister would hear. She then said, 'Don't', which caused you to stop and leave the bedroom, angry, slamming the door.
39In late October or early November 2020 Tala had thoughts of running away from home and committing suicide. She put some of these thoughts in a note. On 4 November she could not return to the family home after school and she went to the home of her friend. She told her friend's father about what you had done to her. The matter was then reported to the police.
Record of interview
40On 12 November 2020 you were interviewed at the Fawkner police station and initially made a no comment interview. When police asked if there was anything you would like to say you said you were, 'Against all the accusations against you', and that nothing happened.
41When the specific allegations were put, you denied they occurred. You also falsely said that some of your children had told you that Tala had been watching pornographic movies and re-enacting them on the couch. You claimed that Tala had fabricated the allegations because of your authoritative style of parenting and so that she would have 'the freedom to do whatever she wanted to do'.
Victim impact
42Two victim impact statements dated 10 November 2022 were tendered and read aloud to the court by Tala and Annie, who attended the court on the plea.
43Tala said in her victim impact statement that she had always believed you were the person she was proud to call her dad, but you were the person who hurt her the most and broke her. She said she was still a little girl and a part of her died the day you did what you did. Tala said even when you are far away from her the pain will never leave. She detailed going to the police station in order to protect her younger siblings from you. She said she had endured the criticisms of family members and friends who did not believe her and at the time contemplated suicide. She said she is no longer your daughter and she is no longer a part of you. She will never forget what you did.
44Annie said you left a never-ending nightmare following her. She said that your offending caused what she described as 'the worst part of her to come out'. She would get in trouble at school and receive non-stop detentions. Annie said that you broke her heart before anyone else ever did and that you were meant to protect 'us’, and she does not understand why that was hard. She said she could not speak to anyone, believing that no one would believe her or understand her. She said you put a 'sharp pain in her mentally, physical and emotionally'. She said she was slowly healing. She spoke about the support she had received from her Aunt. She described the offending as 'like a flashback that just keeps up and no one or anything can make it go away'. She said that, 'we were a good family before you did what you did. Why did that have to change?'
45It is clear from the two statements that the consequences of your offending have been wide-reaching and will be enduring. The impact of your offending against your daughters is a significant matter in sentencing in this case.
46The harm caused by your offending will affect your whole family, including your three younger children who will seemingly grow up without a father figure, as was articulated in Tala’s victim impact statement. By your behaviour you have effectively caused the disintegration of your own family unit and you bear the responsibility for the consequences of that and for the consequences of your offending, as Tala and Annie so eloquently described in their victim impact statements.
Gravity
47The gravity of the offence of incest is reflected by the maximum penalty of 25 years' imprisonment and by the standard sentence of 10 years' imprisonment. The community rightly considers such offending as abhorrent.
48The law is that enduring physical and psychological harm to children is presumed when children are subjected to premature sexual activity. As evidenced by the victim impact statements, the harm you have caused to your daughters is profound. The fact that you are their father has added to the psychological pain they have experienced.
49In the case of Walsh (a pseudonym),[8] Maxwell P and McLeish JA said of such offences:
'Incest involving a child is an appalling crime. It involves a breach of trust of the most fundamental kind, and an inexplicable abdication of parental responsibility. Just as seriously, it involves a cynical exploitation by the parent of the opportunity for sexual contact which being in that position of trust presents.'[9]
[8] [2018] VSCA 172.
[9] Ibid, at [1].
50In the case of DPP v G,[10] Winneke P said:
'The insidious effects of the crime of incest upon its victims should be recognised by those who are privileged to exercise parental care and the community is entitled to expect that those who exercise such care, will not abuse the trust and confidence reposed in them by those in their charge. Parents — and those in loco parentis — who fail to exercise the restraint which the community expects of them, and who give in to their own sexual gratification, must expect to be severely and appropriately punished.'[11]
[10] [2002] VSCA 6.
[11] Ibid, at [10].
51In this case you have offended against two of your children. Your daughters were young, between the ages of 10 and 13 at the time of the offending. All other things being equal, the younger age of the victims is a factor which elevates the objective gravity of offending such as this and it has that effect in this case. The offending in this case took place in their home, where they should have been safe with you, their father.
52The breach of trust and responsibility arising in biological father-daughter relationships is grave. Your behaviour was a complete abdication of parental responsibility. Your duty as a parent was to protect the innocence of your daughters and guide them through childhood and adolescence as a father; instead, you used them as objects for your own sexual gratification, paying no regard to the consequences for them of your behaviour.
53You made efforts to keep your offending secret, making Tala give a promise not to tell her mother about your offending and by trying to downplay her religious and pregnancy concerns arising from what you were doing. On occasions during this offending, such as in the commission of Charge 3, Tala told you to stop but you continued. Unsurprisingly given her age, in some of the incidents you caused her physical pain.
54Some of the offending in this case was brazen, occurring when other family members and visitors were in the house.
55With respect to the offending against Annie, your counsel Ms Clark submitted that as these offences did not involve full penetration and were described at one point in the VARE as attempts, that these offences are not as objectively serious as those against Tala. However, full penetration on both occasions was only prevented by the physical impossibility of you fully inserting your penis into the vagina of your 10-year-old daughter. Your moral culpability for this conduct is not reduced by the fact that full penetration did not take place and the impact on Annie obviously remains very substantial. However, I have had regard to this issue in assessing the objective gravity of the offences against Annie. I do note though that Annie was younger than Tala at the time of those offences.
56Ms Clark submitted the actual offending period in this case is relatively short in comparison to other cases involving this sort of offending and by comparison with some cases this is true. The most severe penalties for offending of this nature are generally imposed for offending that stretches over years involving many incidents, often covered by representative, rolled up or course of conduct charges.
57Additionally, some aspects of degradation sometimes seen in these types of offences beyond that inherently involved in the offending are absent in this case. However, incest against a child is a crime of high moral culpability. You knew what you were doing was wrong and your culpability for this offending is high.
Personal circumstances
58Your personal history was outlined in the submissions of Ms Clark and the psychological report of Ms Gina Cidoni, which as tendered as an exhibit on the plea.
59You are aged 42. You were born and raised in Samoa. Your father was a truck driver and your mother a homemaker. You reported that your father and extended family were physically and emotionally abusive to you during childhood; however, you dismissed this as being routine discipline in your culture. But you said your father gave you injuries, including two broken arms. The gravity of the violence towards you is described in the report of Ms Cidoni.
60You said your family struggled financially, but you were not exposed to violence between your parents or any substance or mental health issues at home.
61You are the eldest of your brothers and sisters. Your brother passed away at age 40 from a heart attack. You have two brothers and three sisters aged between 28 and 36 years old who live in Samoa. Your father died in 2014 after a motor vehicle accident and had been unwell up until that point. Your mother just died last year.
62You described your grades at school as average. You left school in Year 9 to support your family and worked on a fishing boat until you were 19 years old. In 1999 you were diagnosed with lupus. You still suffer headaches and sun sensitivity because of this condition. From the ages of 19 to 21 you worked as a Christian missionary. You have also been employed as a truck driver and cashier at a particular business before you undertook a managerial role. When that company closed down you took up another managerial role with a different company where you worked for a few years. After that you ran a small taxi service.
63You met your wife when you were aged 15. She is three years older than you. You and your wife married in Samoa when you were 25 years old. Your wife then took over the taxi business, which allowed you to obtain your first-aid certificate, and after that you began work as an ambulance driver. You described that work as horrific. You were a firsthand responder to victims of violence, murders and traumatic road accidents. You also worked as an ambulance driver transporting deceased people during the Pacific Island tsunamis in September 2009.
64You and your wife moved to Auckland for better opportunities in 2013. You worked in Auckland as a factory hand. In 2015, you moved to Australia and took up residence in Cranbourne and Frankston before moving to Roxborough Park in 2019. You have worked as a truck driver in Australia from 2015 up until your arrest.
65Apart from Annie and Tala, you have other daughters: Dianne aged 13, Teagan aged nine and a son who is 11 years old. Your youngest, Teagan, suffers from disability and is non-verbal.
66In November 2020, when your offending was brought to the attention of the police, Tala and Annie went to live with their maternal aunt, who attended the plea. Your wife and three youngest remained in the family home and you moved out, initially, to live with a friend.
67You have been in prison for some time now. I am told you are taking English classes twice a week and undertaking all courses and opportunities available, including some which have no application to you such as drug and alcohol courses. You have worked in the prison kitchen since late September 2022. You have maintained contact with your wife weekly through phone calls and in Zoom meetings, but you have had no contact with your children, which is not surprising. Your contact with other family members has been significantly curtailed as a result of these offences.
68You have been diagnosed with high blood pressure in prison, which is managed without medication. You also had an injury or infection to your lower leg, requiring hospitalisation and antibiotics. You are generally though in good health.
Psychological
69In her report, Ms Cidoni diagnosed you as having avoidant and dependent personality disorder, post-traumatic stress disorder and bipolar II disorder stemming from an abusive childhood and the traumatic events you were exposed to as an ambulance driver. She described you as having low cognitive function.
70Based on Ms Cidoni's report, Ms Clark submitted that, given the history of childhood physical, emotional and psychological abuse by your father and considering also your experiences as an ambulance driver, the principles of Bugmy v R (2013) 302 ALR 192 relating to your background serve to reduce to an extent your moral culpability. These matters are said to have contributed to the development of post-traumatic stress disorder. Ms Cidoni opined, 'His experience of severe violence in childhood may be relevant to his case, particularly in the context of R v Bugmy decision.'[12]
[12] Psychological Report of Gina Cidoni dated 17 April 2023, at [92].
71Ms Cidoni said that the development of an avoidant personality and dependent personality in conjunction with increased sexual impulses during hyper manic episodes may have contributed to the offending behaviour.
72She said that your personality traits and mood instability may have contributed to your offending behaviour in that your need for approval and reassurance combined with your fear of abandonment and rejection may have led you to engage in behaviours you knew were harmful or unethical, in a disturbed way in your mind, to maintain your relationships with your family.[13]
[13] Ibid, at [94].
73I must say I do not accept the logic of that paragraph and the causal connection that she postulates. But nonetheless the childhood experiences described are relevant formative experiences in your background which are an important part of your personal circumstances and have contributed to your psychological development. These matters are relevant, as are all your personal characteristics, to the assessment of your moral culpability. They lead to a modest reduction in the assessment of your moral culpability, which nonetheless remains substantial for these very serious offences.
Guilty plea
74You pleaded guilty to these charges on 14 July 2022. An offer was made and accepted by you on the day the special hearing was listed. It was indicated on the plea that the two victims were present at the Child Witness Service ready to give evidence on that day. Fortunately, you pleaded guilty and they were spared that experience. You were remanded into custody on that day.
75This is not a plea of guilty at the earliest opportunity, but I accept there has been several delays and adjournments outside your control, including pandemic-related adjournments and issues finding a judge to hear the case in May 2022. There was also a background of you not having engaged legal representation in early 2021.
76As I foreshadowed, very importantly you pleaded guilty before your daughters were subjected to cross-examination. You have spared them the ordeal of further court proceedings and reliving these experiences by giving evidence.
77You have also saved the court the time and resources of a trial. I accept in this case your plea indicates your willingness to facilitate the course of justice. The utilitarian value of your plea is heightened in the current environment by the backlog of trials this court still faces because of the pandemic. In accordance with the decision of Worboyes,[14] you are entitled to a significant amelioration of the sentences to be imposed because of your guilty plea.
[14] [2021] VSCA 169
78Your guilty plea is indicative of some remorse for this offending, although it is plain that at the time of the record of interview you had no remorse and indeed it took some significant time into the court processes before you were able to acknowledge your offending. Also, in assessing your remorse I have to take into account the fact that when the matter first came to your wife's attention and you had a family conference, you nonetheless after that still engaged in some sexual behaviour towards Tala.
79Still, I accept that you have now gained some insight into your behaviour and have remorse for what you did.
Delay
80You have spent some nine months, perhaps a little longer, waiting for this case to be determined after entering your guilty plea. I accept you have felt very distressed about the court proceedings and the outcome for you and you have experienced disturbed sleep. I have taken this into account as a matter of some relatively modest significance in deciding the sentences in this case.
Prospects of rehabilitation
81It is difficult to assess what your rehabilitation prospects will be in light of the lengthy sentence that is inevitable in a case such as this.
82Ms Cidoni says in her report, that you no longer deny your offending. I accept this. She says you have expressed an interest in obtaining treatment related to your offending. This insight is a positive factor towards the assessment of your prospects of rehabilitation.
83Ms Cidoni conducted risk assessments for sexual offending and assessed you as low to moderate risk of reoffending saying:
'Both assessments were conducted and based on the results, Mr [Turner]'s static risk score was low. However, certain factors such as his reoffending after he was discovered in 2018, unrealistic plans to live with his family after being punished and his low insight into the impact of his actions on the victims suggest that there is a moderate degree of risk associated with his future behaviour.'[15]
[15] Psychological Report of Gina Cidoni dated 17 April 2023, at [100].
84You have no criminal history and I sentence you as a person of good character prior to this offending.
85You have a strong work history. I have received an email from your employer Wayne Cox, which was tendered on the plea, which says you were an integral part of the company and describes your role in the company, and I take that matter into account.
86I have had regard to the other character references tendered on your behalf. Your brother-in-law is a Bishop of the Church of Jesus Christ of Latter-Day Saints in New Zealand. He describes you as humble, hardworking and financially supporting your mother when she was unwell prior to her passing. I also received references from some close family friends who have known you since 2013. They describe you as a valuable member of the community. They say you have a good heart and are willing to help people in need.
87The references refer to you as a 'faithful family man’, who ‘loves being a father’ and ‘protecting your kids from all the bad influences'; these matters are difficult to reconcile with the incest charges that you committed against your two children.
88You have the ongoing support of your wife, some friends and a pastor from a church you attended in Cranbourne. Before this offending you had a stable relationship with your wife and a solid family life and you contributed to the community through ongoing employment. I take all these matters into account in assessing your prospects of rehabilitation.
89Overall, I am of the view you have reasonable prospects of rehabilitation, subject to the cautions expressed by Ms Cidoni about a lack of insight and the matter that I referred to of sexual misconduct after the matter came to the family's attention. For offending as serious as this, the need to facilitate rehabilitation must be reflected in the imposition of the non-parole period.
Time in custody
90This is your first time in prison. You are a man with poor English and there will not be interpreters available to you in custody. You will be isolated by language and culture within the prison system. I accept that for you, imprisonment will be a solitary experience and objectively more burdensome.
91I take into account what Ms Cidoni said, that because of your personality characteristics you may struggle with the structured and isolated environment of prison. She said that the lack of emotional support and absence of validation may exacerbate your mental health issues, potentially leading to an increased risk of self-harm or suicidal ideation. Without labelling this as an application of the principles in Verdins, I am satisfied that for you your first experience of prison will weigh heavily on you and I have taken this into account as a mitigating factor and I have also taken it into account in fixing the non-parole period in this matter.
Risk of deportation
92You are a New Zealand citizen. You are not an Australian citizen. You have been in Australia for getting towards a decade. A sentence of 12 months or more, which is inevitable, will trigger the automatic cancellation of your visa pursuant to the Migration Act. You will have appeal rights against any such cancellation, but the spectre of deportation and potentially immigration detention at the end of your sentence looms large. I accept the risk of deportation and the anxiety and uncertainty accompanying that risk operates to increase the burden of the period of imprisonment I will impose.
93You had made a life for yourself and your family since arriving in 2015. You had employment and friends in the community and the church. You have lost the opportunity of settling permanently in Australia and I take that into account in accordance with the authorities as a potential additional punitive consequence. Although, the loss of opportunity to settle is of less weight in this case, because your criminal conduct would have led to the breakup of your family unit irrespective of immigration consequences and indeed, you contemplated leaving when the offending was first detected.
Standard sentence
94Incest is a standard sentence offence and the standard sentence is 10 years. The standard sentence is the sentence for an offence in the middle range of seriousness, taking into account only the objective factors affecting the relative seriousness of the offence.
95It is not a mandatory sentence, nor the primary sentencing consideration or the starting point from which to add or subtract time. It is just one of the many matters I must consider in the instinctive synthesis of sentencing. I indicate that I have taken into account all matters that I am required to under the Sentencing Act. The individual sentences I have imposed for each offence of incest on the indictment are lower than the standard sentence for incest.
96For a standard sentence offence, I am constrained from fixing a non-parole period lower than 60 per cent of the head sentence unless it is in the interests of justice to do so. For this serious offending I am not satisfied that a period under 60 per cent is in the interests of justice.
97In considering current sentencing practices for a standard sentence offence, I must have regard only to sentences imposed since the introduction of the standard sentencing scheme. The only case I was referred to by the parties was a sentence imposed in this court by Judge D. Sexton in the case of DPP v Stevens (a pseudonym).[16] One sentence is perhaps insufficient to establish current sentencing practice, but it does seem to be a relevant comparative sentence.
[16] [2021] VCC 1510
98Current sentencing practices, like the standard sentence, are just one of the many matters I must have regard to in deciding the appropriate sentence.
Serious sexual offender provisions
99Pursuant to s 6B of the Sentencing Act 1991 and upon being sentenced to a term of imprisonment on Charges 1 and 2, you fall to be sentenced as a serious sexual offender for Charges 3 to 6 on the indictment. Pursuant to s 6D of that Act I must regard community protection from you as the principal purpose for which the sentence is imposed. Sentences for serious sexual offender offences must be cumulative unless otherwise directed.
100The weight to be given to community protection though does depend on the extent that I take the view you will be an ongoing risk once released. I have found that you have reasonable prospects of rehabilitation.
101The totality principle requires that the overall sentence must reflect the total criminality of your offending. To comply with the totality principle, substantial concurrency between the sentences to be imposed in this case is necessary.
102There is tension between the serious sexual offender provisions and the totality principle, which is modified but not excluded by the serious sexual offender provisions. Totality remains a significant principle in this case.
103In deciding the periods of cumulation on the base sentence I have had regard to the fact that Charges 1 and 2 involve a separate victim and that even though you are to be sentenced as a serious sexual offender for Charges 5 and 6 they arise from the same incident, with Charge 6 taking place immediately after Charge 5.
Principles
104The nature and the objective gravity of the offending in this case dictates that general deterrence, that is, the need to deter like-minded people from committing offences such as this, and just punishment are of particular importance in this case. Further, through the sentence I impose, I must denounce this abhorrent offending. Specific deterrence, that is, the need to deter you from ever offending in this way again, is also a significant factor. As I said earlier, I have considered the need to facilitate your rehabilitation and in particular via the non-parole period that I will impose in this matter.
Sentence
105Mr Turner you are sentenced as follows:
· In relation to Charge 1, you are convicted and sentenced to six years and four months' imprisonment.
· In relation to Charge 2, you and convicted and sentenced to six years and four months' imprisonment.
· In relation to Charge 3, you are convicted and sentenced to seven years' imprisonment. Charge 3 will be the base sentence.
· In relation to Charge 4, you are convicted and sentenced to seven years' imprisonment.
· In relation to Charge 5, you are convicted and sentenced to seven years' imprisonment.
· In relation to Charge 6, you are convicted and sentenced to six years and six months' imprisonment.
106With respect to cumulation: fourteen months of the sentence on Charge 1, 14 months of the sentence on Charge 2, 14 months of the sentence on Charge 4, 14 months of the sentence on Charge 5 and six months of the sentence on Charge 6 are to be served cumulative on each other and on the base sentence, which is Charge 3.
107This makes a total effective sentence of 12 years and 2 months' imprisonment.
108HIS HONOUR: Can I just get you to check that. That's right, isn't it? Yes, all right.
109You will be sentenced as a serious sexual offender in relation to Charges 3 to 6. Your serious offender status will be noted in the records of the court pursuant to s 6F of the Sentencing Act.
110The non-parole period is the minimum time that I determine justice requires you must serve, having regard to all the circumstances of the case. The non-parole period mitigates punishment in favour of rehabilitation, but it must be commensurate with the objective gravity of the offending. In this case I order a non-parole period of seven years and ten months.
111Pursuant to s 18 of the Sentencing Act I declare a period of 287 days pre-sentence detention to be deducted administratively from the sentence that I have imposed.
112Pursuant to s 6AAA of the Sentencing Act but for your plea of guilty the sentence I would have imposed if convicted of these offences after a trial is 16 years and two months with a non-parole period of 11 years and six months.
113Pursuant to the Sex Offenders Registration Act 2004, I order that you will be registered sex offender. The mandatory reporting period for these Class 1 offences is life.
114Are there any other orders that need to be made?
115MS HOLMES: No, Your Honour, I think you've covered them all. Thank you.
116MS CLARK: No, Your Honour.
117HIS HONOUR: No. Did the figures add up?
118MS CLARK: I've checked the maths. Yes, I believe they do.
119HIS HONOUR: Yes. All right. Thanks to both counsel and I'll now adjourn. Mr Interpreter, were you able to interpret all of that to Mr Turner? All right, thank you very much also for your assistance.
120MS CLARK: If Your Honour pleases.
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