Director of Public Prosecutions v Valdez (a pseudonym)
[2018] VCC 1688
•16 October 2018
m
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR -17-01445
Indictment No. H10160969.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANNIS VALDEZ (a pseudonym) |
---
JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | Trial: 9 and 10 August 2018. Resolved to Plea: 13 August 2018 and Plea hearing: 12 October 2018 | |
DATE OF SENTENCE: | 16 October 2018 | |
CASE MAY BE CITED AS: | DPP v Valdez (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1688 | |
REASONS FOR SENTENCE
Catchwords: maintain sexual relationship with a child under 16 under care supervision or authority. Late plea after victim had completed evidence at trial.
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr B Nibbs at Trial and arraignment on filed over indictment (9, 10 and 13 August 2018) Ms S MacDougall on Plea | Office of Public Prosecutions |
| For the Accused | Mr F Cameron | Gigliotti Lawyers |
HIS HONOUR:
Dennis Valdez[1], just remain seated please. You have pleaded guilty to one charge of maintaining a sexual relationship with a child under the age of 16 who was under your care supervision or authority.
[1] A pseudonym
You have no prior criminal history before the courts nor anything since.
The maximum penalty for the offence is 15 years' imprisonment. That was explained to me in some detail by the prosecutor Ms MacDougall the other day and agreed to be the position by your counsel, Mr Cameron.
You pleaded guilty at a very late stage. The trial had commenced, a jury had been empanelled and the complainant had been called to give evidence before the jury, using the remote witness facility. She had in fact completed her evidence at trial at the point when the matter resolved. Another civilian witness had also been called and cross-examined in relation to the complaint that she had received.
Facts
What was made plain at the time of the resolution of the matter and prior to arraignment on the filed over indictment was that the plea indictment embraced all of the specific conduct which had been individually particularised in the trial indictment. That you admit each of the six acts. Now the Summary of Prosecution trial opening document would have provided a decent guide to the factual basis of sentencing. That is because the evidence given at trial by your victim did not depart in any significant manner from what was expected.
In any event, the prosecutor Ms MacDougall on the plea, sensibly had prepared and filed a written opening on the plea and that was an agreed factual statement. That was marked as Exhibit A and it contained also a chronology. I referred in the course of discussions on the plea to some other matters in the evidence that had been given before me, and that was to give your counsel the chance or opportunity of addressing such matters if he chose to.
There is however no need now for me to descend to the full factual basis of sentencing as it is conveniently set out in that agreed document. I will still say something quite briefly about the facts though.
Your victim was your niece. Her date of birth is [redacted][2]. She is now almost 32 years' of age. She was between the ages of 8 or 9 and 11 at the time of the 6 acts embraced by the single charge, to which you have pleaded guilty. Your date of birth is [redacted]. You are now 55 but would have been in your 30’s at the time of the offending.
[2] Dates of birth have been removed.
Your victim and her younger sister spent a fair bit of time in your company. You looked after them when their mother and your wife were at work or attending work functions. Hence care supervision and or authority is admitted here. You exposed your penis on the first occasion at your Dandenong flat. She was around 9 years' of age. See the Trial Transcript page 95. The second occasion involved you touching the girl on the outside of her vagina over her clothing as the rubbish bin was put out. Again it was at your Dandenong flat when she was about 9 or 10. Then there were the 4 occasions at the Berwick home to which you had moved. You were looking after the two young girls on those occasions. By then she knew what certain looks from you meant. There was in that sense a connection borne out of the earlier conduct and other conduct the subject of the context evidence that was led.
The first incident at Berwick started in the lounge in the presence of the sleeping younger sister. Your victim had opened her legs. You started rubbing your penis and indicated by look that you wished her to touch herself which she did. The actual particularised act is then what took place in the bedroom. You had asked her to come there and she did. You penetrated the girl’s vagina with your fingers and at one point pulled your pants down and had the girl stroke your erect penis for some minutes. This occurred between 1 May 1996 and 15 January 1997. Your victim turned 10 on [redacted]. Though it is possible of course that she may have been 9, I cannot sentence on that basis as it is unclear whether she was 9 or 10. It is accepted by the prosecution that they cannot prove that she was under 10 at the time and hence the lower penalty provision applies.
The last incident occurred in the bathroom on another occasion and involved a further act of digital penetration of the girl's vagina, as well as a touching of her breast. By then she was 10.
In addition of course, there was the context evidence. That is to say the other occasions of your showing your penis and touching her on the vagina over the underwear. The plea summary refers to that material and that is an agreed statement. Even had that not been so, I have no doubt at all that those acts occurred. I am satisfied of it beyond reasonable doubt though in fact I do not use it to in any way increase the penalty here. It merely makes sense of the claim of the connection said to exist and looks given by you meaning something to her. That is all. You do not fall to be sentenced for that uncharged conduct.
Ultimately the acts stopped.
Many years later you arranged a meeting with your victim. By then she was in her 20’s. This was in around 2011. You arranged to meet her at McDonalds. She was puzzled but she attended. You said that you wanted to apologise, she said ‘what for’, you said words to the effect ‘I think you know what for’. In fact, she did not as she had blocked out the memories of these acts. You said that it was for the things that you had done to her when she was younger. With that, those memories flooded back as she sat there. You asked for her forgiveness. She was totally taken aback by the whole event and was desperate to bring the meeting to a close and said at that stage, that she forgave you. The fact is though, she was reeling at the time from the events of that day. You told her not to tell anyone of the meeting or of what was discussed. See Trial Transcript pages 104-107. A later admission was made by you to her boyfriend. At one point the victim met with your wife and told her about your offending and the apology that you had made. Your wife confirmed that you had admitted the acts. See paragraphs [55] and [56] of the opening.
Your victim reported the matter to the police in May 2016 and you made a no comment interview on 12 July 2016, which of course was your right. There was a contested committal conducted last year and the matter was committed to this court for you to stand trial. Again these were your rights. Ultimately you pleaded guilty but regrettably that was after a jury was empanelled, after the case was opened and after the victim was fully cross examined by your counsel. The defence was that none of these acts had taken place, that she was either lying about them or mistaken about them or mistaken as to the identity of the actor. It was suggested that she had possibly misattributed the acts to you when the true actor was said to be her father who had also abused her sexually. I had granted leave pursuant to section 342 of the Criminal Procedure Act for those questions to be put. They were put and she rejected that suggestion point blank. Of course, your counsel had to deal with the apology. As to the apology that you had made, your counsel suggested to the victim that it related to a single occasion where you placed your hand on her breast when she was a good deal older. That made no sense at all as you had apologised for the things - plural - the things that you had done to her. Those admissions were course devastating pieces of evidence in any trial setting obviously enough. The complainant gave evidence, she was cross-examined. She swore up entirely and she was a most impressive witness when called to give evidence on Friday 10 August of this year. She rejected the suggestions made to her by your counsel who was after all, merely putting your instructions. The matter settled the following Monday, that is 13 August of this year.
I remanded you in custody on the day of the plea indictment being filed which was 13 August. Earlier that day when told that the matter had been settled I had discharged the jury in relation to the six count trial indictment and explained to the jury the reasons for doing so, namely that you had now admitted each of those acts having occurred. As I have said, there is a chronology marked as part of exhibit A, though of course there are a couple of errors in that document, as is obvious.
Impact
I turn then to the impact of your conduct. Your victim has made a victim impact statement. It is dated 11 October 2018. I am not going to recite all of the impacts in these my reasons. I have read the impact statement again since the plea was conducted, late last week. Indeed as you will recall, she chose to read aloud that impact statement to the court last Friday. It made for pretty sobering listening. What is plain is that you have greatly damaged someone who trusted you, and someone that you were in a position of trust in relation to. Much is made by your counsel of the passage of time since these acts and the benefits that therefore should flow to you. I do not say that those matters are unimportant. Of course they are not. However here we are after all these years with a woman very much damaged by your conduct.
There is nothing at all surprising in the way that your victim has been affected by your acts. This was very serious offending. She was just a young girl. You were her much loved uncle. It is very plain that your offending has had a very serious impact upon her in so many aspects of her life. Emotionally. Physically. Financially. She has had significant issues with intimacy and trust. She is suspicious of many men and sees a man with a child and instantly thinks the worst. She does not want to think that way but she just does, and that is because of you and the way that you have altered her view of the world.
In the course of her evidence on one or two occasions, she spoke now as an adult, of being ashamed now to say that she liked the conduct. Well of course she should not be ashamed. She was a little girl. You were an adult. Your conduct as the adult is the critical thing here. And of course none of these acts were her fault. The fault lies entirely at your feet. She has always been ashamed of her body. She says as much in her impact statement. She worries about the sort of mother that she will be. She is 19 weeks pregnant at the moment. She has seen a psychologist for many years now and that has been of real assistance. I take the very serious impact of your conduct into account as I am required to. You have damaged your niece in very many ways and that damage no doubt will continue into the foreseeable future. Hopefully this Court process will give her some solace and some assistance. Part of that process is your admitting your guilt, your fault, your responsibility. Her seeing and hearing those words from you. Not words uttered by you in secret at a McDonalds but in the formal Court setting. Hopefully the healing will continue for her into the future.
Mitigation
Your counsel, Mr Cameron raised a number of matters in mitigation in the course of the plea. There was a written outline marked as Exhibit 1 though there were some alterations in the running of the plea. He relied mainly upon:
· Your guilty plea;
· The presence of remorse;
· The absence of any criminal history at all;
· He took me to your personal background, the passage of time since this offending and he made submissions as to your future prospects of rehabilitation and your risk of re-offence;
· He conceded the seriousness of the offending but raised issues about the weight that ought be given to the various purposes of sentencing:
· He relied upon a report from a psychologist, Dr Barth as well as a bundle of written references; and
· He conceded the inevitability of a term of imprisonment and one requiring the fixing of a non-parole period but he argued for a, as he put it, a shorter than usual non-parole period. I interpose, there is of course no such thing as a ‘usual’ non-parole period.
Prosecution
The Prosecutor, Ms MacDougall did not need to say much as to ultimate disposition in that she reiterated what your counsel had conceded. Namely, the need for a prison term and one requiring the fixing of a non-parole period. She submitted that specific deterrence and community protection still had a role to play given the nature of the offending, the trial chronology and the issues spoken of in the report of Dr Barth.
Guilty plea
Let me turn then to the matters raised in mitigation. Firstly, your guilty plea. You have pleaded guilty. It is a very late plea, you know that, but it is still of some value. You have ultimately taken responsibility for your offending. Unfortunately as your plea was so late, it has not spared your victim the experience of giving evidence. She gave evidence at the committal and then again at the trial. As I said earlier in these reasons, at trial she was cross examined and challenged as to the happening of these events. An early guilty plea, which this most definitely is not, is of such high value as it spares a witness that whole experience. Likewise it avoids the need for a committal and a trial. Well here you ran a committal in July 2017. The Victim was called. You were committed to stand trial. A written defence response was filed. Issue was taken with the happening of any of these acts. We commenced a trial in August 2018. The matter came before me after it had sat in the reserve list for three days. But for my taking it, it would have been adjourned off not reached, to another trial date. In discussions prior to empanelment, your counsel reiterated that the happening of the acts was the principal issue in dispute. We empanelled a jury, and the jury were engaged in the case for three days. It settled on that third day of their service. Two witnesses including of course the critical witness, your niece, were called and cross examined. The savings afforded by your decision to plead guilty were not sizeable as the Crown case was due to finish on the very day that you pleaded guilty. Still there was at least some saving and two witnesses who were due to be called were spared the experience of giving evidence. Now one of those was the informant. The other was a civilian witness, Brad Wilson who had been asked some brief questions in cross-examination on an application, that is a Basha hearing, conducted prior to empanelment.
You have to this extent at least facilitated the course of justice, and as late as the plea was, I still must reward you for your decision to plead guilty and for ultimately taking responsibility in the way that you did. I must pass a lesser sentence upon you than I would have imposed had you actually been found guilty by a jury. The fact is, your guilty plea as late as it was, took the matter out of the hands of the jury. You admitted your guilt and that is still of value. I am however, as I am sure you know, required to take into account the stage of the plea and this was very late and for the reasons I have discussed it does not warrant anything like the sort of very sizeable discount that would apply in relation to an early or very early guilty plea.
Remorse
I turn now then, to the claim made as to the presence of remorse. The claimed presence of remorse is a vexed issue in this case. It is an interesting concept. Your counsel retreated from the written submission where he had argued that you were ‘extremely’ remorseful and he argued instead that I should find the presence of at least some remorse here. Well the chronology is an unfortunate one here and of course that prompted his retreat. That is to say cross examination of your victim on two occasions, once at the committal and once at trial. At a trial where you were disputing the very happening of these acts and/or attempting to have them attributed to your victim’s father. Acts that you admit occurred at your hands. Acts that you had apologised to the victim for. Acts you had admitted to your wife. Running a trial was of course your right but it was a pretty unrealistic endeavour here. Now conducting a trial is ordinarily though not always inconsistent with remorse. Here of course you terminated the trial and did so by admitting your responsibility and pleading guilty. And a guilty plea is often indicative of some remorse. I have your guilty plea at the end of the evidence of the major witness, your victim.
It seems to me then, that I cannot look at the apology or the plea or the trial chronology in isolation. All these things exist and they all have a role to play in my eventual finding. The fact is you made your approach to your victim in around 2011. It was not her approaching you to express a grievance or to seek out an apology. You sought her out and you had no inkling of any need to approach her to stave off prosecution. You initiated an approach to apologise presumably as you then felt sorry for what you had done. That is what you then did. You apologised. So that is pretty decent evidence of your having a sense of remorse back then in 2011 for what you had done to her years before. One might have expected you in those circumstances then to have followed through on that remorse by then admitting your conduct and pleading guilty at an early stage in these proceedings once charged. Well, it is a shame that you did not but the fact is, you did not. There were probably aspects of self-preservation at play that overcame the decency that you had earlier shown in that 2011 approach and apology. Also perhaps a strangely warped or distorted sense of why and how the matters occurred as commented on by Dr Barth in his report.
There is mention in references and in the report of Dr Barth as to the presence of some remorse but Dr Barth it would seem had no real knowledge at all of the trial chronology, of your denials of offending or even the fact of cross examination of the victim. There is also mention made of feelings of shame for the impact upon your family as opposed to the direct victim.
It is by no means a simple business. I do not pretend that it is. But I am ultimately prepared to find, as your counsel suggests I should, the existence of some remorse here. You still have a pretty limited insight into these matters as Dr Barth makes plain. Your remorse is far from complete and it is mixed in with a pretty healthy degree of self-pity as well as shame and remorse for the impact upon your family as distinct from the deep feelings of remorse you actually should feel for your direct victim. The person that you have offended against. Still some remorse is better than none and I do believe that you feel some.
Background
Let me turn then to your background. I am not going to work my way through your entire personal background. There is a report from Dr Barth with much by way of your personal background set out within. I have no reason not to accept the personal background and I do accept it. You are 55 years' of age.
You were born and brought up in India in a very large family. Finances were quite tight. It was a decent family background, with no abuse. You had loving parents and you had an uneventful completion of schooling and then movement on to tertiary education and then employment. You came to Australia in 1993. You are an Australian Citizen.
You have no criminal history at all, nothing before these events, nothing since. No issues with alcohol or drugs or any past diagnosed mental health problems. You have had a decent employment record in India and in Australia. In truth, you probably worked at a level below where you should have in this country owing to your overseas qualifications not being recognised.
You have been married twice. You have been in a stable family relationship in that second marriage though there were some issues commented upon in the report of Dr Barth. You have a 16 year old daughter.
You have experienced poor health for some years now though it is not suggested that it will in any way increase your custodial burden. That is not the way it has been raised. You are at Hopkins Correctional facility and you are working there. There are the written references placed before me which are favourable and I take those into account.
Report of Dr Barth
I also take into account also the report of Dr Barth which is marked as Exhibit 2 on the plea. There are some obvious limitations at play in relation to that report. Your counsel made it plain that none of the principles from the case of Verdins v R had any application here and plainly that was correct. Still the report from Dr Barth is of use to the court. It contains much detail as to your background. The report also posits theories or opinions as to how you may have, as an adult, rationalised this offending. It deals with levels of future risk. It is a bit hard to know what to make of it all as it is to a degree at least, founded on your account to Dr Barth. He has an obviously incomplete understanding of the chronology which is a great pity. I was told by your counsel that Dr Barth had no understanding that you had in fact been denying the offending or that you had through counsel conducted the committal and the trial cross examination of the victim. That the acceptance of guilt was only a very recent development. His comments as to the presence of remorse therefore have to be seen in that light. It was not as he, Dr Barth seemingly understood it, as simple as you apologising to your victim, being charged by the police and then pleading guilty. That is not what happened here at all. Indeed, until 13 August of this year, you were denying the offending categorically, you were disputing the truthfulness of the victim and worse still, seeking to pass your conduct off as the acts of the victim’s father. Really, Dr Barth needed to know these facts to make any sensible assessment of the existence of remorse and yet he did not. Likewise his risk assessment with the table set out at paragraph 42 is plainly based on that inaccurate view of the case. There are the 5 Risk of Sexual Violence Protocol (“RSVP”) factors set out in that portion of the report and under the heading psychological adjustment, there is the subheading “extreme minimisation”, “past” or “recent”. And in each case that is marked “No”. It reflects of course his incomplete understanding of what actually had taken place prior to your guilty plea.
As to the account that you provided him, who knows what you told him. You have hardly been a reliable historian in regard to the offending. Having said all of that though, it is not a normal piece of conduct for an adult to engage sexually with a child. You have no history of doing so before or since. And he as an expert, understandably is attempting to explore the reasons why you acted in the way that you did act all those years ago. Maybe there was a level of stress in your life or isolation in your married life. That does not in any way explain the decision to offend sexually against a child. He says that no doubt by virtue of your upbringing in India and in that particular family that you grew up within, that you had and have a very limited understanding of the emotional and behavioural development of girls and even now a difficulty in detailing why the conduct such as yours is harmful. He says that you had likely at the time, a pretty limited insight into appropriate boundaries. Well your victim, that is to say your niece, was affectionate with you as she liked you as an uncle. She enjoyed spending time with you as an uncle.
You had these deficits which Dr Barth says may have produced an offence supporting cognition or mindset, if you like, a warped or distorted way of thinking which permitted you to rationalise and to an extent justify your conduct. You still had a fair measure of this distorted thinking at the time of the interview with Dr Barth and that was recent and that is concerning. He says as much. That distorted thinking and current lack of insight obviously raises your risk of recidivism. You are judged by him to be in the early phase of gaining insight into your offending. Dr Barth says you are a low to moderate risk of sexual recidivism though as I say he has factored in some inaccurate detail there in relation to the absence of extreme minimisation or denial. You plainly need specialised treatment. He comments on the positive or protective features of family stability and general pro social orientation. I take into account the report of Dr Barth. I am not sure we ever will really know precisely why you chose to offend in the way that you did. But make no mistake, it was your choice. There is obviously a level of speculation in the opinions offered and they are to an extent founded on your account to him. I do not for one moment accept that any of these distortions or thought processes obscured your knowledge of the serious criminality of your offending. I am satisfied of that beyond reasonable doubt. You knew this was serious criminal conduct, of that I have no doubt at all. You were in your thirties. Your niece was 9 or 10. You knew of the legal and the moral boundaries that existed. You told your victim not to tell her sister or anyone else. See paragraph 17 of the opening. You took her to a room out of the view of any other witness.
Rehabilitation
I turn then to your prospects of rehabilitation. Many years have passed with no repetition of the behaviour. However there is still the concerning lack of insight on display here and a seemingly warped or distorted view of your nieces conduct. I repeat, she had no role in this other than being selected by you. She was a young girl and you abused her. You have a risk of re-offence that is said to fall in the low to moderate range. Your counsel in his submissions to me submitted that you “still don’t quite get it” a reference to your not understanding the gravity of the conduct. You will clearly need specialised treatment in the years ahead and it is to a degree speculative as to the impact that that treatment will have upon your future risk upon your ultimate release from prison. You will also have the restraints imposed by the Sex Offenders Registration Act. You will also serve a sizeable term of imprisonment which one would hope will operate to deter you to some extent into the future. There is the passage of time with nothing since and nothing before and the various pro social or protective factors spoken of in the report of Dr Barth. You have no issues with alcohol, drugs or mental health problems. The absence of those sorts of things that might impede rehabilitation.
Your counsel did not attach any particular adjective to describe your prospects into the future but he was arguing impliedly that you have reasonable or decent prospects of rehabilitation and that so much could be gleaned from the materials including the passage of time since the actual offending.
For the reasons advanced by your counsel, I do accept that you have relatively favourable prospects. I am expressing this qualified view owing to the concerns expressed in the expert report as to lack of insight persisting more than 20 years post offence. That and the fact that this was not isolated offending against this victim. It spanned a decent period with a number of acts and decades later you still demonstrate some style of distorted thinking. You have also pleaded very late in the piece after recently categorically denying any of the offending. It seems to me at least, that you are still a work in progress and you need a deal of treatment and counselling in the years that lay ahead.
I take into account all of the written material that has been placed before me and I am not going to descend into the full detail of it. I have read it all again since last Friday. I have not for instance descended to the full detail of the references from the family members and the priest but I do take them into account, also the other written reference. I take into account also, the various oral submissions of your counsel as well as those of the prosecutor.
The Offences
As to the offence for which you fall to be sentenced your counsel accepted that this was serious offending. It was. This was a young girl in your care. You were in a position of care supervision and/or authority. Serious sexual offending engaged in with a totally vulnerable innocent young relative. Not her fault. Not at all. Yours entirely. You were the adult. So it was penetrative conduct as well as non-penetrative conduct and hence it cannot be said that it was isolated. It was not. That is not the nature of this charge. It rolls up the six acts on those different occasions. So not a single act on a single day. Conduct that spanned a decent period and with very sizeable impact which I am required to take into account. No doubt there are instances of the offence that are more serious. Where for instance there is a much younger victim or one where there is very regular sexual conduct spanning sometimes decades. We are not dealing with that setting. But the setting I am dealing with is still a very serious one. This was serious offending against a child.
Purposes
I turn now then to the purposes of sentencing. There are a number of purposes of sentencing that I must pay regard to. I must consider them all. I am not limited only to looking at your prospects of rehabilitation though of course I pay regard to those prospects which I have described a short time ago in relatively favourable terms.
Some consideration must be given to specific and general deterrence, to protection of the community, to denunciation and to punishment.
I am required to impose a just and proportionate sentence in relation to your offending. You must be punished.
I must also denounce your conduct and I do. Denunciation is actually very important here.
There are other purposes of sentencing and one of those is the need for this court to seek to discourage or deter you from offending into the future. I must give that principle of specific deterrence, as it is referred to by us lawyers, some weight in my sentencing task. I cannot just ignore it. But nor can I ignore the passage of time and the lack of any prior or subsequent offending or the relatively favourable view I have reached in your case as to your future prospects of rehabilitation. You are now in your 50’s and you have never committed any offences. None before. None since. You call in aid your past good character and that has to be given weight by the court.
I believe that therefore there can be some moderation of the weight given to specific deterrence as well as community protection in this case. They are still to be given some weight just not the weight that they may receive in a different case, such as where an accused has highly relevant criminal past history before the Court and/or has failed to respond to past Court orders. That is not the setting that I am dealing with at all.
General deterrence though is a very significant sentencing purpose in this sort of case. Time and time again our highest State Court has spoken of the seriousness of this style of offending upon young children and the high need for deterrent effect. This court must send a very loud and clear message to other individuals in the community who might be minded to commit this sort of serious crime against a child. This sort of conduct will not be tolerated by the courts and that message must be sent out loud and clear.
In the case of Sadrani [2015] VSCA 202, a case dealing with allegations of sexual penetration of a child and indecent assault, the Court of Appeal said in 2015 that the fact of that type of offending taking place at all underlines the importance of sentences being imposed which demonstrate to the community and to any person who might contemplate sexual offending against a child, that such offending is and should be unthinkable and not pursued. The President of the Court of Appeal in that case stated that, if it were better understood that offending of this kind would ordinarily attract significant terms of imprisonment, that perhaps then the County Court would not be dealing as often as it has to with child sexual offences. General deterrence is of real significance in this case and your counsel accepts that to be so.
I must pay regard to current sentencing practices though that it is not a single controlling factor in this or any other case.
I am well familiar with sentencing practices for the individual charges that are particularised in the charge. That is to say when there is an individual charge to be dealt with. Of course I am dealing with the charge of maintaining a sexual relationship. There are the six particularised acts. I have not paid regard to the sentencing snapshot dealing with ‘persistent’ sexual abuse as that is a far more recent offence with a higher maximum and in fact differing elements. Even the sentencing snapshot and the SACStat data for the older s.47A offence, relates to a period where there was a higher maximum penalty in play.
So the statistical material is of no utility in this case. That is, why the prosecutor did not take me to that material and she announced that at the time. The fact is though that even when taken to statistical material, it always has limitations. It can never say anything about the individual features of the particular offence or of the particular offender.
At the end of the day, what I have to do is pass an appropriate sentence in your case for your crime. Your crime as I say rolls up the 6 particularised acts occurring on those 4 different occasions. It is punishable by a maximum of 15 years imprisonment. It was by the way a sensible way for the matter to proceed. You have received the benefit of not being dealt with under the serious sexual offender provisions in the Sentencing Act which would have been the required position had the acts not been rolled into a single s.47A offence.
Prison is always a disposition of last resort. It is very comfortably reached here. I am left with no choice at all but to impose a sizeable prison term here for what was undoubtedly serious offending. Had I been required to sentence you for the 6 individual acts charged as separate crimes, well of course I would have been required to fix a base sentence for the worst offence, likely the first act of sexual penetration, then pass individual sentences on the balance of the offences and then consider the extent of cumulation and/or concurrency and in that way, in that sort of case, reach a Total Effective Sentence. That would have required consideration of what is referred to as the principle of totality. I am only passing sentence for the one offence but that one offence particularises the 6 pieces of conduct set out within it.
I have taken a last look at the sentence that I have imposed to ensure that it is not crushing upon you and is commensurate with your criminality in this case.
464 ZF
Application is made for a forensic sample order. The order is not opposed but not consented to and your counsel took me to the lack of criminal history and the significant passage of time here. It is clear enough that the making of such an order does not follow automatically from a finding of guilt. I am required to consider the seriousness of the circumstances of the offence. I must be satisfied that in all the circumstances the making of the order is justified. This crime is, as I have said in my reasons to date, a serious one. There is no question about that. The social utility of the order is also relevant to the exercise of my discretion, but it is not the only consideration for me to have regard to. It is clear enough from the case law in this area that even when there is a minimal risk of recidivism, the gravity of an offence may be such as to justify the making of a forensic sample order. Well the risk in this case is not said to be minimal here and there is presently material touching upon your current lack of insight. Having considered all the circumstances including the seriousness of the offence, I judge that it is appropriate to make the order sought by the prosecution. I now formally pronounce it. I order pursuant to the provisions of s.464ZF of the Crimes Act that you undergo a forensic procedure for the taking of a scraping from your mouth in accordance with sub-division 30A of part 3 of the Crimes Act, until a sample of sufficient standard is obtained for placement on the database. I have made this order having considered the seriousness of the circumstances of the offence. I am satisfied that the making of the order is justified owing to the seriousness of the offending, the fact that the order is not actually opposed and that the granting of the order, in my judgement, is in the public interest. What this relates to then is the taking of a forensic sample from you. I have authorised only a scraping from your mouth. I always authorise, if I do at all, the least invasive process which that is. I have not authorised a blood sample. What this means is someone in authority will approach you in custody to obtain that sample which is done in a fairly straight forward fashion. It is not too invasive. There will be a swab run around the inside of your mouth, so that should not be a problem for you. I have to tell you though at this stage, given the fact that you are not opposing the order even though you are not consenting to it, you are not opposing it, that if you do not consent to the taking of the mouth scraping at the time of the authorities approaching you, they can use reasonable force to enable the procedure to be conducted. I have signed that order.
Sentence
Mr Valdez I see that you have risen to your feet. Thank you for that. It is time for you at last to answer for the serious sexual acts that you chose to commit upon your young niece all those years ago. Acts which have so altered her life and for the worse.
On charge 1, that of course is the only charge on the indictment, that of maintaining a sexual relationship with a child under the age of 16 years who was under your care, supervision or authority I convict and sentence you to 6 years’ imprisonment. As there is only that single charge that is therefore the Total Effective Sentence.
NPP
I fix a period of 3 years and 9 months during which you will not be eligible for release on parole.
Pre-Sentence Detention
There is a period of 64 days pre-sentence detention that you have already served since I remanded you in August of this year and I declare that that period has already been served in this case
Section 6AAA
Had you maintained your plea of not guilty and been found guilty by a jury, I would have imposed a greater sentence, make no mistake about it. Had you been found guilty of this offence following a completed trial, I would have convicted and sentenced you to 7 years’ 3 months imprisonment. I would have fixed a non‑parole period of 5 years. That statement is to be noted in the records of the court. I will have you take a seat. I have just got to explain one final matter to you but have a seat please.
Sex Offenders Registration Act 2004
As a result of sentencing you in relation to this particular offence you must comply with your reporting and other obligations under the Sex Offenders Registration Act 2004, for the remainder of your life. Mr Cameron concedes that that is the position. I will shortly have handed to you a document that explains your many obligations under that Act.
You will need to acquaint yourself with your obligations as they are quite onerous and any breach of the Act is itself a very serious criminal offence. I am simply as this stage having you sign that document to indicate that you have received it. It is a lengthy document. I am not expecting that you are going to sit down there in the dock and read it all now. It would be impossible for you to do that and of course you will have plenty of time to read the document and you better do so.
When you do, you will see that the particular Act, the Sex Offenders Registration Act 2004 imposes a large number of conditions upon you. They include impediments to your future employment in a variety of areas. You must familiarise yourself with these matters, because as I say, any breach of that Act or any breach of your reporting obligations under that Act is itself a serious criminal offence, one usually punished by a term of imprisonment.
Mr Cameron, you have seen these forms before, I am sure you have.
MR CAMERON: Certainly have, Your Honour.
HIS HONOUR: You know how lengthy they are.
MR CAMERON: I know.
HIS HONOUR: Of course it is not my expectation that he is going to sit down there and read it all or digest it. It would be impossible for him to do that. All that is happening now is him signing an acknowledgment of the receipt of his reporting obligations under the Act.
MR CAMERON: Of receipt of it. Yes.
HIS HONOUR: Those obligations are set out in the document in great detail. So all he is doing is acknowledging receipt.
What I will do then is I will have that go down to the dock with my associate. You can go down with my associate and we will have the acknowledgement signed. I have got to sign it as well.
MR CAMERON: I will, Your Honour.
HIS HONOUR: Well I will have that come down with my associate. If you would go down with Ms Todisco please and have it signed. Thank you.
MR CAMERON: Thank you, Your Honour, I understand it has been signed and my client understands that he will have an opportunity to read it and can raise any issues with the people at Hopkins.
HIS HONOUR: Very well. All right, well it is very important that he do. And as I have said a number of times and the document itself has got very bold type warning of the importance of compliance and that is the position. Anyway, I note that he has signed the acknowledgement. You have got also a copy of the obligations then Mr Valdez, and as I say I emphasise the importance of your familiarising yourself with your obligations under that Act. If you do not you will breach the conditions and that would have you wind up going back to prison once you are released, I can assure you. So you need to read it very, very carefully but I see that the acknowledgement has been signed. I will just sign the formal order. Take a seat for a moment. Yes, well I have signed the formal order. Is there anything else I need to deal with at all, or not?
MR CAMERON: No, Your Honour.
HIS HONOUR: No. You will go down and see your client downstairs, will you?
MR CAMERON: Yes, Your Honour.
HIS HONOUR: Yes, all right. Well Mr Valdez can be removed and Mr Cameron will come down and see you downstairs.
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