Director of Public Prosecutions v Unger (a pseudonym)
[2019] VCC 1615
•4 October 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LESLIE UNGER (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 September 2019 | |
DATE OF SENTENCE: | 4 October 2019 | |
CASE MAY BE CITED AS: | DPP v Unger (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1615 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords:
Legislation Cited: Sex Offenders Registration Act 2004; Sentencing Act 1991; Crimes Act 1958
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J. Malobabic | Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr P. Chadwick Q.C. | Clancy Solicitors |
To ensure there is no possibility of identification, this sentence has been anonymised by the adoption of pseudonyms in place of names of the victims and family or witnesses.
HER HONOUR:
1 Leslie Unger,[1] you have pleaded guilty to four charges of committing an indecent act with a child under 16. The complainants in relation to each of the four offences are, in Charge 1, Candace Unger,[2] and in Charges 2, 3 and 4, Grace Unger.[3] The maximum penalty applicable to each of the charges is 10 years’ imprisonment.
[1]A pseudonym.
[2]A pseudonym.
[3]A pseudonym.
2 Charges 2, 3 and 4 are representative charges; Charge 2 of four occasions; Charge 3 of four occasions; and Charge 4 of three occasions.
3
When sentencing on representative charges, the law, consistent with
R v SBL[4],is applicable, and such was agreed by both counsel.
[4](1999) 1 VR 706.
4 Your crimes arise out of events which took place between 10 February 2010 and 31 January 2014 and involved two of your granddaughters. I will stop there. Mr Interpreter, are you ok?
5 INTERPRETER: Yes.
6 HER HONOUR: Great. It is not necessary for me to recount in great detail the facts of this matter as they are on transcript, the matter having been opened in some detail by the learned prosecutor, consistent with Exhibit A. I proceed to sentence you on the basis of the facts as so summarised by the prosecutor and discussed in the course of the plea hearing. It is sufficient for present purposes to simply say the facts in this case are most serious and disturbing. Your behaviour was obviously quite unacceptable.
7 I turn to the prosecution opening.
8
You are 78 years of age at sentence and were between 68 and 72 years of age at the time of your offending, involving your grandchildren; i.e. Candace
aged 10, and Grace, aged between 7 and 12 years of age.
9 Candace was born in February 2000 and Grace born in January 2002.
10 Candace and Grace are biological sisters, their father, Peter Unger,[5] is your biological son.
[5]A pseudonym.
11 At the time of this offending, you lived at an address in Wangaratta. Both your son, Peter, and his wife worked full time and as a result you would travel from Wangaratta to Melbourne to stay at their home to look after your grandchildren during the school holidays.
12 I turn to your offending involving Candace. Between 10 February 2010 and 9 February 2011, Candace was in Year 5, age 10. She described an incident that occurred during the school holidays when you came to look after she and her siblings at their home. Their parents were at work.
13 Candace was sitting on the couch in the living room with you watching television. You told her that they were going to do some exercise. Candace was doing sit-ups and push-ups while you sat on the couch watching her.
14 You told her to sit on your knees so that she could do some sit-ups while sitting on your knees. Candace went over to you and sat straddled over your knees, facing you. You held her hands and performed reverse sit-ups. She was leaning back over your knees. After that she sat on your knees, facing you, you and she were talking.
15 You put your hand under the front of Candace’s pants and touched her vagina over her underwear and also underneath her underwear, such that your skin was touching her. You moved your hand outside her vagina, Charge 1.
16 Candace grabbed your hand and pulled it away from her vagina, got up off your knees and told you she was going to go outside to see if Grace and her brother, Declan,[6] were there. She left the room and went outside.
[6]A pseudonym.
17 I turn to your offending involving Grace. Between 1 January 2010 and 31 December 2014, Grace was 7 to 12 years of age.
18 On an occasion at her family home in East Burwood, she was sitting on a three person chair watching television with an orange blanket over her. You came into the room and sat next to her. At some stage you touched her leg, forced her to touch your stomach, then rubbed her breasts over her clothing, Charge 2, occasion 1.
19 You then rubbed her stomach over and underneath her clothing and proceeded to rub her vagina underneath her clothing, skin to skin, Charge 3, occasion 1.
20 On the last day of Year 5, you were to pick her up from school. Grace was in the front room of the East Burwood home, watching television. You came into the room, sat next to her, placed a blanket over her legs and started to touch her legs and stomach over her clothing under the blanket. You then proceeded to touch her breasts, Charge 2, occasion 2.
21 You then touched her vagina over and underneath her clothing, Charge 3, occasion 2.
22 You touched Grace’s stomach again, grabbed her hand and directed her to stroke your penis over your clothing, Charge 4, occasion 1.
23 You stopped touching her when Grace’s younger brother, Declan, came into the room.
24 Grace described an incident, 'The last time it happened'. She was in Wangaratta for a tennis tournament, staying at your home with her mother and two of her paternal cousins.
25 Grace was in the living room with you and at some stage you touched her leg over and underneath her clothing and touched her breasts under her clothing, Charge 2, occasion 3.
26 You then touched Grace’s vagina with your finger under her clothing, skin on skin, Charge 3, occasion 3.
27 You then forced Grace to touch your stomach, chest and penis, Charge 4, occasion 2.
28 Grace told you that she was feeling uncomfortable and that she wanted to go to the toilet. Grace saw her cousin, Chantelle,[7] in the hallway and told her, 'Grandpa’s been touching me like weirdly'. Grace asked Chantelle to stay in the room with her. Chantelle stayed with Grace but ultimately left the room. Once she left the room Grace at some stage ended up back on your lap. You began by touching her breasts over her clothing, touching her legs over her clothing, then touching her breasts under her clothing, Charge 2, occasion 4.
[7]A pseudonym.
29 You then touched her vagina over and under her clothing, Charge 3, occasion 4, then forced her to touch your chest, stomach and penis, both over and underneath your clothing, Charge 4, occasion 3.
30 After that occurred, Grace immediately disclosed your offending to her cousins and Candace, telling them that you had been 'touching' her. Grace also told her mother that you had touched her but did not disclose that this was not the first occasion on which you had done so.
31 Once Candace and Grace’s father learnt of Grace’s allegations, he told his daughters that they did not have to see you again and that you would not be coming to stay with them in Melbourne. He confronted you. You denied the allegations.
32 I turn to the police investigation. Grace disclosed your offending to a school counsellor in February 2014 and the matter was referred to police. When police attempted to conduct a VARE with Grace, her parents refused to allow her to be interviewed. As a result, that police investigation ceased.
33
In December 2017, Grace went to Box Hill SOCIT to provide a VARE. In
April 2018, Candace provided a statement detailing her allegations.
34 You were arrested and interviewed on 9 July 2018. During that interview you said you knew about the general nature of the allegations that Grace had complained about being sexually touched by you, and that she had complained to her parents and her school. You said your son confronted you about the allegations and you had denied them. You agreed you would look after the children on occasions when in Melbourne. You said you may have, 'incidentally' touched Candace during playing with her but denied touching her vagina or going under her legs. You could not remember the first incident detailed by Grace but denied the offending. You recalled January 2014 when Grace and her family came to stay with you in Wangaratta for the tennis tournament. You suggested Grace may have made up the allegations because you had told her off for being naughty and for staying up at night.
35 As I discussed with your counsel, Mr Chadwick, during the plea hearing you denied any sexual offending in the interview, and also suggested you were, in essence, shocked by the allegations.
36 You were charged in January 2019.
37 An aggravating feature of your offending was that it was a breach of trust, not only of Candace and Grace, but also their parents who trusted their daughters, your granddaughters, in your care.
38 I also note the continuation of your offending after Grace told you she felt uncomfortable with you touching her and getting up and leaving the room. Despite being told by Grace she was uncomfortable with what was occurring, some time later you recommenced offending after Chantelle left the room. You again then touched Grace’s legs over her clothing, touched her breasts under her clothing and forced her to touch your chest, stomach and penis over and under your clothing.
39 You have pleaded guilty to these charges and you are entitled to have that fact taken into account in your favour, and I do so. The community has been spared by your pleas of guilty, the time and cost of a trial and witnesses, in particular your granddaughters, have been spared the ordeal of having to give evidence upon your trial. Your pleas of guilty have utilitarian value.
40
The prosecution filed a chronology relevant to your pleas of guilty to these charges. The record of interview was conducted on 9 July 2018, in which you denied all allegations. On 15 January 2019 you were formally charged. Thereafter I accept the matter progressed through the Magistrates’ Court to a filing hearing on 11 February 2019, and at the third committal mention on
17 May 2019, the matter resolved and you pleaded guilty to these charges. Your plea hearing was then listed in this Court. Those representing you had been in contact with the prosecution during that time, attempting to arrange a suitable indictment between the filing hearing and ultimate resolution.
41 I accept the timing of your pleas of guilty were within 7 months of being charged. I accept your pleas of guilty were entered early. You pleas of guilty and timing of them are relevant in mitigation of your sentence.
42 The prosecution conceded that your pleas of guilty were entered early.
43 In the circumstances I am prepared to accept that your pleas of guilty indicates some remorse for your offending. Mr Chadwick conceded he was not relying upon any other indications of remorse, in particular, as you had not, and were not, prepared to make known to the court the reasons for your offending.
44 I note for sentencing purposes you do not have any prior court convictions, anything subsequent or pending. You therefore come to the Court as a person of otherwise good character until, of course, this offending.
45 The victims of your offending have suffered considerably in the manner described in their Victim Impact Statements and I shall return to pass some remarks on those later.
46 Having been found guilty of three or more Class 2 offences, you are required, pursuant to the Sex Offenders Registration Act 2004, to report for life. Such being mandatory. Mr Chadwick agreed such classification and duration applied to you. I make that Order and I shall return to this at the conclusion of my sentencing remarks.
47 I turn to the serious offender provisions in the Sentencing Act 1991. Following sentences of imprisonment on two charges before me, you thereafter fall to be sentenced as a serious sexual offender. Again, Mr Chadwick, on your behalf, submitted such would be applicable should I sentence you to terms of imprisonment on two charges.
48 Sections 6D and 6E of the Sentencing Act 1991 apply when sentencing pursuant to those serious offender provisions.
49 When sentencing you I must regard the protection of the community from you as the principle purpose for which the sentence is imposed and may, in order to achieve that purpose, impose a sentence longer than that which is proportionate to the offence considered in light of its objective circumstances.
50 The prosecution were not seeking a disproportionate sentence and I am of the opinion I am able to sentence you appropriately without the need to impose a disproportionate sentence.
51
Also relevant to these provisions are RHMcL v R[8] referred to in
Matheas v The Queen[9],in which Court of Appeal Tate JA in the latter referred to Gordon v The Queen[10] and DPP v Bales[11]:
[9][2017] VSCA 330 (‘Matheas’).
“When s.6E is enlivened…there is a need to ensure that the totality principle is not applied in a manner inconsistent with the legislative purpose of s.6E, that is, full effect is not to be given to the totality principle as though s.6E ‘was not on the statute book’. The weight to be given to the totality principle is to be moderated to ensure consistency with legislative purpose'[12]
[10][2013] VSCA 343.
[11][2015] VSCA 261.
[12]Matheas [50].
[8](2000) 174 ALR 1 (‘RHMcL’).
52 The principle of totality still has applicability when sentencing you on the charges to which I have just referred (See DPP v Hopson[13]). In Zhao v The Queen[14] the court specifically referred to totality and the ‘one episode’ rule.Mr Chadwick urged that rule was applicable, referable to your offending in Wangaratta. Whilst that offending (paragraphs 20-27 of Exhibit A) occurred on the one day, there was, however, nevertheless a ‘break’ in your offending of some duration when Grace left the room, returned with Chantelle, then Chantelle leaving the room and you again offending against Grace. You had the opportunity to desist from further offending, but you did not. I accept the duration of the break is not clear from the material, nevertheless there was a break. The factual scenario is somewhat different to that in Zhao.
[13][2016] VSCA 303.
[14][2018] VSCA 267 (‘Zhao’).
53 As an aside, the nature of the charges (Charges 2, 3 and 4 being representative of occasions not only at Wangaratta) also impacts on the ‘one incident’ rule.
54 I am aware that one of the four incidents, referable to Charge 2, one incident, referable to Charge 3, and one incident of Charge 4, occurred before Grace left the lounge. Following her return, and some time later, there was one incident referable to Charge 2, one incident referable to Charge 3, and one incident referable to Charge 4, after that break in time.
55 Your counsel, Mr Chadwick, provided a written outline of submissions and addressed them during the course of your plea hearing.
56 I turn to your personal circumstances and history. You are now 78 years of age. You are an Australian citizen, born in Italy. You are the youngest of two sons, your father killed in World War II before your birth.
57 Your mother then ran a small farm of 3 to 4 acres, effectively subsistence farming.
58 You were educated until 11 or 12 years of age, approximately Grade 4 level. Upon leaving school you went to work on your mother’s farm. You described very poor living conditions in post-war Italy. You worked on your mother’s farm until migrating to Australia in 1962 as a single man when you were 20.
59 In Australia you joined an aunt and uncle who had a dairy farm in Wangaratta, boarded with them, and worked with them for approximately 12 months.
60 Your employment has also included work on tobacco farms in that area. You began as a textile worker in 1964, remaining as such for 39 years, retiring in 2003.
61 You met and married your wife in 1965. She was also a textile worker. Your daughter, Gloria,[15] was born in 1965.
[15]A pseudonym.
62 In 1968 you bought your first home in Wangaratta.
63 Your brother followed you to Australia in 1968 or 1969 and continues to live in Wangaratta. You son, Peter, was born in 1971.
64 In 1973 you purchased land in Wangaratta and built a house, and this is where you continue to live.
65 You supported your family by shift work, supplemented by working on tobacco farms and doing some concreting. I accept you have had a good, solid work history and been a good provider to your family.
66 Your children were educated at local Wangaratta schools, your daughter finishing her secondary schooling, then becoming a teacher. Your son left school at Year 10 after health and behavioural problems at school. Your son left home to live in Melbourne whilst he was a teenager.
67 After the children left home you described living a quiet life with your wife until her health deteriorated and she was ultimately diagnosed with dementia. Living at home became exceedingly difficult for both of you and she was placed into a nursing home in 2014. You visited her daily, taking her home cooked meals.
68 You described your wife’s experience in the nursing home as very stressful for her, as she hated the nursing home and was resistant to their care. Ultimately she did not recognise you and died in 2018.
69 Mr Chadwick provided an amended report from Christopher Kelly, consultant psychologist, dated 22 September 2019. He had interviewed you and provided counselling to you on four occasions, you having been referred to him by your general practitioner in July 2019.
70 At the time of referral your general practitioner stated you were suffering depressive symptoms, had poor sleep, low mood and at times morbid thoughts. You were living alone and stated you felt lonely. Mr Kelly conducted a medical state examination and provided the following results. You appeared worried and preoccupied.
71 Your attitude to counselling was one of cooperation, however, said you were constantly worried and spoke of your wife passing away, which left you upset and lonely.
72 You had reasonable physical health, albeit a painful right knee. You were suffering depressive symptoms and said you felt down, depressed and worried.
73 You appeared coherent and alert during the sessions with Mr Kelly. You described feeling particularly “down, especially at night with lots of things on your mind and missing your wife and family.” You said it was hard to feel happy.
74 Your cognition appeared normal apart from being preoccupied and having a low mood.
75 In the opinion of Mr Kelly you were suffering depression, low mood, severe stress, an adjustment disorder, were preoccupied with your thoughts, finding it difficult to concentrate, were confused and described altered memory.
76 You showed anxiety symptoms and had poor sleep.
77 Mr Kelly was willing to continue counselling with you.
78 Mr Chadwick was not relying on the principles in R v Verdins & Ors[16], and that, in my opinion, was an appropriate concession on the material before me. I also discussed with Mr Chadwick the lack of reference by Mr Kelly to your offending and reasons for it. It is not clear whether you even discussed the details of it with Mr Kelly other than as reflected in his report, p.2 paragraph 3.
[16](2007) 16 VR 269 (‘Verdins’).
79 Mr Kelly did not address specifically your risk of sexual re-offending, other than by inference, as I discussed with Mr Chadwick, making it impossible for me to determine your actual risk.
80 Having said that, I accept your offending occurred within your home environment and not in the wider community. By saying that I am not suggesting that offending against your granddaughters is not very serious. It is. Your opportunity to re-offend has not been addressed in the material before me. I am not aware of any ongoing contact with any of your other grandchildren, if indeed they are young, and I, of course, do not speculate. There is, however, an absence of material referable to future risk.
81 I accept your prospects of rehabilitation are fair, based on the information before me, although remain troubled by the lack of any explanation for your offending. Rehabilitation is referable to remorse and reformation (see Tones v The Queen[17]). I have already referred to your limited remorse and do not have details of your ‘reformation’, such as whether you have received counselling for this sexual offending. I do again note, however, your lack of any prior criminal offending or anything subsequent or pending.
[17][2017] VSCA 118.
82 Mr Chadwick relied heavily upon your age at sentence. Whilst you do not have any significant health issues, however, you are 78 years of age.
83 Age is a relevant sentencing consideration and I am aware that at age 78 you will be for the first time, incarcerated. Courts in the past have referred to old age (and ill health) and its relevance to sentencing.
84 I take into account R v RLP[18]. I note the decision in TRG v The Queen[19], in which Weinberg JA referred to RLP, and a passage from that judgment of Neave, Redlich JJA and Hollingworth AJA:
[18][2009] VSCA 271 (‘RLP’).
[19][2011] VSCA 337.
'We approach the conjunction of the appellant’s advanced years and ill-health with these propositions in mind:
i.the age and health of an offender are relevant to the exercise of the sentencing discretion;
ii.old age and ill-health are not determinative of the quantum of sentence;
iii.depending upon the circumstances, it may be appropriate to impose a minimum term which will have the effect that the offender may well spend the whole of his remaining life in custody;
iv.it is a weighty consideration that the offender is likely to spend the whole or a very substantial portion of the remainder of their life in custody;
v.other sentencing considerations may be required to surrender some ground to the need to exercise compassion to take account of the real prospect that the offender may not live to be released and that the offender’s ill health will make his or her period of incarceration particularly onerous; and
vi.just punishment, proportionality and general and specific deterrence remain primary sentencing considerations in the sentencing disposition, notwithstanding the age and ill-health of the offender; and
vii.old age and ill-health do not justify the imposition of an unacceptably inappropriate sentence.' [see para 39]
85 In R v Whyte[20], President Winneke noted a sentencing Judge must be astute to pay due attention to the age of an accused and stated, 'they must also be careful to ensure that confidence in the administration of justice is maintained by imposing sentences which reflect the gravity of the crime which is being punished'.
[20](2004) 7 VR 397 [29].
86 His Honour further stated:
'In such cases the court said it would be inappropriate to approach the selection of a proper minimum term from the point of view that, because of the offender’s age, there was a need to grant some measure of life after release. Such an approach, it was said, would mean that general deterrence and retribution would receive insufficient weight.'
87 In R v Iles[21] the court referred to R v Cumberbatch[22]:
'… an offender’s age does not mitigate against the imposition of a significant period of imprisonment in the appropriate case'.
[21][2009] VSCA 197.
[22](2004) 8 VR 9.
88 I turn to the Victim Impact Statements. They are eloquent and it is difficult to do justice to them in these brief sentencing remarks. I have, however, read them.
89 I received a Victim Impact Statement from Candace. I was advised Grace wanted me to read her Victim Impact Statement privately and I have done so. She did not wish the contents of her statement to be read aloud in Court by anyone and I understood that to also include me. As such, I do not refer to the contents of her Statement. I accept, however, from its contents, there has been an adverse impact on her by your offending.
90 I received a Victim Impact Statement from Peter Unger, father of Candace and Grace, read into the transcript. He constantly asked himself why you did this to his children. He trusted you implicitly. You had destroyed the very foundation of the family, love and trust, for your own selfish needs. He felt nothing but angst and emptiness. He said it was not fair you had continued to live a normal life and act as if nothing had happened, whilst his daughters live with the pain of your offending throughout their childhood. You had betrayed the trust of your own family. The damage you have caused has been far more reaching than anyone could begin to imagine. It had also put undue stress on all relationships, including siblings and cousins. He regretted that he did not realise what was going on earlier.
91 There was a Victim Impact Statement from Julia Unger,[23] mother of the complainants, read into the transcript. She described that in January 2015 her whole world crumbled, a parent’s worst nightmare. Her initial feelings of shock and disbelief were followed by months and years of feeling angry, betrayed, shame, guilt, disgust, hurt, embarrassment, humiliation, hate and extreme sadness.
[23]A pseudonym.
92 Her life had been a roller coaster since that day. Initially her thoughts were how to protect her daughter, Grace. They decided, given Grace’s age and reluctance to do so, not to make a formal statement at that time. At that time she was unaware about her daughter, Candace, also having been affected by your offending. At the time she became aware of Grace’s circumstances she was under extreme pressure from Candace as her full time carer, as she was extremely ill. She was also at that time caring for her elderly and ill father.
93 As a result of your offending and the trauma, both Grace and Candace endured, they sold the home and moved away, to get far away from Burwood, as it had affected all their lives. Grace, she said, became very isolated and withdrawn over the years.
94 The shame associated with your offending had affected her own wellbeing also, constantly being reminded of how this had affected the family, her relationship with her children, her spouse, family members and friendship group.
95 Moving home had impacted on the family being so far away from family, school, friendship groups and the community. At times they felt isolated, depressed and not belonging. She suffered with anxiety. She described the financial outlay of the household as a result of your offending.
96 To this day she has not been able to tell family members what she had been going through and the reasons why they moved. She felt she had failed her daughters and failed the family unit.
97 There was a Victim Impact Statement from Grace, who said your offending had significantly impacted on her life in a number of negative ways. She felt unable to tell anyone for approximately 8 years, which meant she felt unsafe and lived in fear. That meant she felt very alone and isolated and distanced herself from her family, in particular, her father. She placed anger and blame on her father.
98 She had issues trusting people. Your offending had impacted upon her confidence and self-esteem. When she was younger she felt she had to make herself look like a boy and that you would stop. She felt she could not wear dresses and look like other girls her age because of your offending. She described the impact upon her self-esteem and confidence.
99 She suffered crippling panic attacks and had flashbacks which left her feeling distressed, angry, upset and scared. The flashbacks occur in the form of nightmares and that had been consistent over the years.
100 She had trouble sleeping since your offending started, which has impacted adversely on her mental health.
101 Her schooling, personal life and social life had all been severely impacted over the majority of her life because of your offending. Attached to the Victim Impact Statement were a number of photographs of Grace from 2007 to 2019, which I discussed with Counsel.
102 Also relevant is the notion of social rehabilitation referable to the effects upon a victim of sexual offending, including DPP v Toomey[24] in which his Honour Justice Vincent referred to social rehabilitation citing DPP v DJK[25]. I, of course, allow for the different offending in those case to yours.
[24][2006] VSCA 90.
[25][2003] VSCA 109 [17-18].
103 The effects upon a victim are a relevant sentencing consideration (see s.5 Sentencing Act 1991). I am conscious, however, that I must not allow the effects upon a victim to swamp the sentencing process.
104 Mr Chadwick referred to his inability, despite effort, to find cases comparable to yours for the purposes of sentencing. That does not surprise me, and it is always difficult comparing cases factually, as facts vary enormously case to case, as do all matters in mitigation of sentence and personal to an offender.
105 Your counsel, Mr Chadwick, urged that the terms of imprisonment I impose be wholly suspended or partially suspended (the latter not his primary submission). Such a disposition would be available to me should I consider such to be appropriate given the relevant legislation at the time.
106 Mr Chadwick submitted regarding sentence, that while a term of imprisonment, together with a Community Correction Order, could be considered, he conceded that submission was not without difficulty, given the limitation of one year’s imprisonment.
107 The prosecutor, Ms Malobabic, submitted that the appropriate disposition was an immediate gaol term. I questioned her in relation to Mr Chadwick’s submissions regarding a wholly (or partially), not his primary submission, however, suspended term of imprisonment and Ms Malobabic confirmed her instructions were an immediate custodial sentence.
108
When determining whether or not a suspended sentence was appropriate,
Ms Malobabic referred to the nature of your offending (and gravity of it), its impact upon the victims, and whether such would be an adequate form of denunciation (see previous s.27(1A) Sentencing Act 1991, which has now been repealed as suspended sentences are no longer available).
109 Ms Malobabic referred to the adverse impact of your offending upon the victims and the presumption of harm, citing Clarkson v The Queen[26]. Also the impact as evidenced by the contents of the Victim Impact Statements themselves.
[26](2011) 32 VR 361.
110 The prosecutor referred to the breach of trust involved in your offending, including of your son and his wife, who trusted their children in your care.
111 She also referred to the age of the two victims at the time of the offending, that they were young and vulnerable. I agree they were.
112 She referred to the disparity of age between the complainants and yourself. Mr Chadwick submitted such was not a relevant consideration and that it was sufficient to say that you were the grandfather of the two girls. In my opinion, the age disparity is apparent, anyway. Simply recognition of a grandfather committing offences against his grandchildren in the circumstances that are before me, and I will return to that later.
113
The prosecution filed written submissions on this, dated 1 October 2019, which I had read, and the defence filed further written submissions on
30 September 2019 (received by me on 2 October 2019), which I have also read.
114 Mr Chadwick conceded the young age and vulnerability of both complainants, that the accused was the grandfather of the complainants and in a position of trust, and that he was between 68 and 72 years old and Grace between 7 to 12 years of age at the time.
115 Mr Chadwick submitted such an age differential was to be expected in a grandfather/grandchild situation.
116 Mr Chadwick relied upon BM v The Queen[27] and, in particular, Shawcross (a Pseudonym) v The Queen[28].
[27][2013] VSCA 3.
[28][2018] VSCA 295.
117 The prosecutor submitted regard should be had to the relative age discrepancy between an offender and the complainants when assessing the objective gravity of the offending.
118 It appears to me what is relevant is that the complainants were young and vulnerable, the offending was by their grandfather and in a breach of trust, and these are relevant considerations in aggregation of sentence.
119 To sentence on the basis of the difference in age between Candace and Grace in this case is encapsulated in the description of grandfather/grandchildren and is not a further aggravating feature, as it is implied in the relationship between the offender and the victims.
120 The prosecutor described your moral culpability as high. I agree.
121 That your plea of guilty was the only indication of remorse. I agree.
122 Also, that there were three representative charges to take into account when sentencing, and of course that is correct.
123 Ms Malobabic tendered some sentencing statistics for the offence of indecent act with a child under 16 between 1 July 2013 and 13 June 2018. As I said during - - -
124 INTERPRETER: Excuse me, Your Honour, may I interrupt for a moment?
125 HER HONOUR: Yes. What are you missing?
126 INTERPRETER: I have lost the sequence.
127 HER HONOUR: I am up to paragraph 123, p.18.
128 INTERPRETER: I have not got it. I have got something here in between which I think I have got back to front.
129 HER HONOUR: Yes, go and check.
130 INTERPRETER: Yes.
131 HER HONOUR: They should all be there but we will just check it. Page 18 we are up to.
132 INTERPRETER: Sorry.
133 HER HONOUR: No, all right, no problem. Down the bottom of the page is the number.
134 INTERPRETER: Yes, I know, I know, but - - -
135 HER HONOUR: Yes, all right.
136 INTERPRETER: But there were - yes.
137 HER HONOUR: Got it?
138 INTERPRETER: Yes, thank you.
139 HER HONOUR: Good. Paragraph 123.
140 INTERPRETER: Hundred and - thank you, yes.
141 HER HONOUR: Second bottom paragraph. You with me?
142 INTERPRETER: Yes, yes.
143 HER HONOUR: I will read it again.
144 INTERPRETER: Yes.
145 HER HONOUR: The prosecutor tendered some sentencing statistics for the offence of indecent act with a child under 16 between 1 July 2013 and 13 June 2018. As I said during the plea hearing, sentencing statistics have their place, however, there is a lot of information missing from those statistics.
146 In DPP v Clunie (a pseudonym)[29] regarding current sentencing practice, the court commented on the, 'very significant limitations upon the usefulness of general statistical information'[30]. Further, the Court noted that, 'consistency in sentencing is not synonymous with numerical equivalence'.[31]
[29][2016] VSCA 216 (‘Clunie’).
[30]Clunie [54].
[31]Clunie [58].
147 Ultimately, I must determine the appropriate sentence based on all relevant considerations in this case, including matters personal to you and in mitigation of your sentence.
148 As well as matters personal to you, including your prospects of rehabilitation as I find them to be, I must also take into account matters such as deterrence, especially general deterrence, which is of considerable importance in a case such as this; i.e. sexual offending against children.
149 There are a number of concerning aspects of your offending, including that you were acting in loco parentis.
150 The Courts have also repeatedly referred to sexual offending involving children, many of those authorities you can find in DPP v Dalgliesh[32] for a brief summary.
[32][2016] VSCA 148.
151 Reflecting community views, courts have condemned in the strongest terms sexual offending against children by those responsible for their welfare. In Ryan v R[33], Kirby J said:
'Courts must uphold the law which treats sexual offences against children and young persons as extremely serious crimes, particularly where (as is often the case) such offences involve breaches of trust and responsibility on the part of those who had such young persons in their care.'
[33](2001) 206 CLR 267.
152 And in R v WEF[34], Winneke P said:
'This court has frequently said that those who engage in sexually abusing young persons who are in their trust can expect to receive condign punishment. Such conduct is not only destructive of family values and all that they stand for but it is now well known that it has the capacity to destroy for its young victims their chances of enjoying a natural and healthy lifestyle.' (Paragraph 82 – Dalgliesh)
[34](1998) 2 VR 385.
153 Being mindful as I am of the different charges in R V Wakime[35], Winneke P - now, I will have to go slowly now. Are you with me? I am up to p.20. You have not got it? Listen, all right.
[35](1997) 1 VR 242.
154 INTERPRETER: No, I have not got 20, yes.
155 HER HONOUR: Right. That is why we are going to go slowly, so you can interpret it.
156 INTERPRETER: Thank you.
157 HER HONOUR: All right, here we go. Right Winneke P in Wakime referred to the importance that community expectations play in sentencing offenders:
'…as this Court has repeatedly pointed out, incest is an abhorrent crime.'
158 And I note the very different charge in this case but I will come back to that:
'His Honour correctly recognised the crime's capacity to erode decent family life and the trust and confidence of its victims. This Court has said that it ought not to turn its back on the tide of community anger and resentment towards crimes which involve the despoliation of children'.
159 Again not particularly relevant. I am coming to the relevant part:
'As the Court has indicated in the past, if fathers wish to claim guardianship rights over their children, they have an overriding responsibility to assume their obligations to protect the moral welfare of those children'.
160 Again, I note the very difference offences to yours, however note His Honour’s statement regarding those with, 'guardianship', rights over children.
161 There is also the need for specific deterrence when sentencing you, given your offending occurred on a number of separate occasions (one involving Candace and three involving Grace), also involved two complainants and over an extensive period of time between February 2010 and January 2014. Whilst Mr Kelly indicated you had attended four sessions of counselling, he did not refer to any counselling for sexual offending. Specific deterrence, despite your lack of criminal history, has some relevance but need not loom large in the sentencing process.
162 I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending.
163 Again, I have no explanation for your offending, and no reference to any counselling for it, nor do I have a risk assessment relevant to future sexual offending. However, I am aware of the circumstances of this offending and again do not consider this need loom large, however, still has some significance for the reasons to which I have just referred.
164 I am called upon by the Sentencing Act 1991 to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
165 In my opinion, it would not be appropriate in all the circumstances of this case to wholly suspend or partially suspend any portion of the term of imprisonment I impose. The only appropriate disposition, in my opinion, is a term of imprisonment with a head sentence and a non-parole period.
166 When sentencing you I have applied the principles of totality, consistent with RHMcL and other relevant cases when sentencing serious sexual offenders, and I sentence you as follows. All right, can you stand up, please:
167 On Charge 1 you are convicted and sentenced to 9 months’ imprisonment;
168 On Charge 2, convicted and sentenced to 15 months’ imprisonment;
169 On Charge 3, convicted and sentenced to 18 months’ imprisonment;
170 On Charge 4, convicted and sentenced to 20 months’ imprisonment.
171 I declare that you are sentenced on charges 3 and 4 as a serious sexual offender.
172 The base sentence is Charge 4, and I direct the following:
173 I direct that 4 months of Charge 1 be served cumulatively upon Charge 4;
174 I direct that 7 months of Charge 2 be served cumulatively upon Charge 4.
175 Now, listen carefully, counsel, we are now moving to the next charge, all right:
176 I direct that 10 months of Charge 3 be served concurrently, and 8 months cumulatively, upon Charge 4.
177 That results in a total effective sentence of 3 years and 3 months’ imprisonment and I set a non-parole period of 2 years.
178 The orders for cumulation in the sentence I have imposed are upon each other and upon the base sentence.
179 Have a seat while I read the rest. Keep interpreting. Pursuant to s.6AAA, Sentencing Act 1991 - - -
180 INTERPRETER: Sorry?
181 HER HONOUR: Pursuant to s.6AAA of Sentencing Act 1991, had you pleaded not guilty to these charges and been found guilty of them, although noting some difficulty with representative charges for the purpose of this declaration, I would have imposed a head sentence of 8 years and a non-parole period of 6 years.
182 The prosecution made application pursuant to s.464ZF Crimes Act 1958 for a forensic sample. That was not opposed by counsel on your behalf. I make the order in the terms sought based on the seriousness of your offending. It will be for a saliva sample and I must advise you the authorities may use reasonable force in order to obtain that sample.
183 Pursuant to s.18(4), Sentencing Act 1991, I declare you have spent 10 days in custody up to and including yesterday, 3 October 2019, by way of pre‑sentence detention and I direct that be entered into the records of the Court.
184 I have also made an order pursuant to the Sex Offenders Registration Act, to which I have previously referred in these sentencing remarks. My associate, will approach you in a minute and ask you to sign documents acknowledging receipt of that paperwork relevant to that Order. You are not being asked if you want to be placed on that Order. I have made that Order. My associate is simply asking you to acknowledge receipt of the paperwork by signing for it, and I have already previously made a declaration in relation to charges 3 and 4, which I will not repeat that. That is sentences of a serious sexual offender.
185 Now, are there any other orders sought?
186 COUNSEL: No, Your Honour.
187 HER HONOUR: Now, what about did you follow the mathematics? I am not asking if you agree with the figures. I am just wanting to make sure you got them down correctly, particularly when it changes with concurrently and cumulative, but you have got that.
188 MS MALOBABIC: Yes, Your Honour.
189
HER HONOUR: Yes, all right. Have a - yes, already seated. Now, I will just clarify it. Para 53. That should have been one incident referrable to
Charge 3. That was the - one was missing from it. So it is now going to be fixed up, and I think that covers all points. Is there anything before
my associate heads down the back?
190 MS MALOBABIC: No, Your Honour.
191 HER HONOUR: Nothing to add?
192 MR CHADWICK: No, Your Honour, no.
193 HER HONOUR: No, excellent, all right.
194 MR CHADWICK: No, Your Honour, no.
195 HER HONOUR: All right, Madam Associate, can you just go down the back, and do you want to go and have a chat quickly?
196 MR CHADWICK: No, Your Honour, I will do that downstairs.
197 HER HONOUR: All right. Well, can you just ask him to - - -
198 MR CHADWICK: It has all been discussed with him already, Your Honour.
199 HER HONOUR: Has? So he knows about this document.
200 MR CHADWICK: Yes, Your Honour.
201 HER HONOUR: Good on you. Thank you for doing that. That is very helpful. Yes, thank you. Let the interpreter translate it. Mr Interpreter - you have got to go a bit slower. If you do not want to sign you do not have to. It is just signing for the paperwork, that is all you are doing, just saying, I have got the paperwork. Sign, yes. And you can bring all those other papers. Madam Associate, bring all the other papers back with the sentence. All right, did you have the 464s? They there? Have I signed them? For a saliva sample, as we discussed. All right. Nothing further?
202 COUNSEL: No, Your Honour.
203
HER HONOUR: All right, thank you both. Yes, yes, sorry, you will have to go out, I am afraid. Mr Unger, you will have to leave and go out there.
Mr Chadwick will come down and see you in a minute, all right. Well, maybe today. Yes, or soon.
204 MR CHADWICK: Soon.
205 HER HONOUR: Thanks, Mr Interpreter.
206 INTERPRETER: Thank you.
207 HER HONOUR: Thanks for your help. Thanks.
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