Director of Public Prosecutions v Van Dorp
[2015] VCC 1748
•30 October 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT GEELONG
CRIMINAL DIVISION
CR-14-01545
CR-15-01423
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Ronald Van Dorp |
---
JUDGE: | Hampel | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | Trial: 27–30 July 2015, 3–7, 10–14, 17–19 August 2015 | |
DATE OF SENTENCE: | 30 October 2015 | |
CASE MAY BE CITED AS: | DPP v Van Dorp | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1748 | |
REASONS FOR SENTENCE
---
Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J. Lewis | OPP |
| For the Accused | Mr P. Higham | Stary Norton Halphen |
HER HONOUR:
1 Ronald Van Dorp, following a jury trial, you were convicted of 26 charges of indecent assault. The charges concerned 15 separate complainants. All were female. The youngest was 16 at the time, the oldest, in her 60’s. All were clients of the massage business that you ran from your home, and all were sexually assaulted by you in the course of what should have been a proper therapeutic or relaxation massage. Some were sexually assaulted by you on more than one occasion.
2 21 of these charges of which you were found guilty, once in respect of 13 individual complainants, twice in respect of another one, and 6 times in respect of the last, involved you placing or resting your genitals in their hands, or rubbing your genitals along their arms or bodies whilst they were undressed, completely or but for their underpants, and you were massaging their backs as they lay face down on the massage table. The jury found that two of the complainants, one of them on two occasions, and one on one occasion were also sexually assaulted by you by you touching them on their vaginas as you massaged their legs and buttocks. And the jury also found you guilty of touching the breasts of two other of the 15 complainants, in circumstances where you knew there was no therapeutic purpose for you touching their breasts, or knew what you were doing was not in accordance with any belief had by you as to accepted practice for such therapy.
3 You were acquitted by the same jury of a further 9 charges of indecent assault relating to touching the breasts of another two of the complainants. In those cases, the jury must not have been able to exclude the reasonable possibility either that you believed you touched their breasts for a therapeutic purpose, or you did so in accordance with your belief as to accepted practice for such therapy.
4 Your defence at trial, in respect of all charges involving genital contact, as set out in the defence response to the prosecution opening, and as opened at trial, was put in the alternative, that there was no genital contact, but if there was, it was inadvertent. By the time you gave evidence at trial, you appeared to have accepted that the contact occurred, as each complainant said it did.
5 You acknowledged that had the contact between your genitals and the hands of the complainants occurred as they said it did, you would have been aware of it, that is, that it could not have been accidental, or inadvertent. You acknowledged you had massaged the two complainants who alleged you had touched their vaginas in the course of massaging them, that with them you had massaged very high between their legs, but maintained any contact with their vaginas was accidental. On one of the two occasions charged in respect of one complainant, and on the sole occasion charged in respect of the other, each of them had said that the touching occurred on more than one occasion in the course of the massage. It is not surprising that the jury rejected your assertion that the contact with the genitals of those complainants was accidental, and found you guilty of those three charges.
6 So far as the charges relating to the touching of the breasts was concerned, your case was that, with the four complainants in respect of whom indecent assault by touching the breast charges had been laid, that you had obtained their consent to massaging their breasts as part of a therapeutic procedure described by you as lymphatic drainage.
7 Expert evidence was called which revealed that the technique you used was not in accordance with accepted practice for lymphatic drainage, and some of the reasons you advanced to clients for performing lymphatic drainage had no support in medical or other therapeutic literature. There was no challenge to the evidence the technique you used had no support in medical or therapeutic learning or practice.
8 There was a significant difference in the evidence in respect to the manner in which you touched the breasts of the two complainants in respect of whom you were found guilty of indecent assault by touching their breasts under the guise of lymphatic drainage and the two where you were acquitted. Your touching of the breasts of the two women where you were found guilty of indecent assault in respect to that included evidence that you touched the nipples of each of them. There was no evidence that you touched the nipples of the two women in respect of whom you were found not guilty. That provides a clear and rational explanation for the difference in the jury verdicts in respect of that type of charge.
9 They jury verdicts are consistent with the acceptance, in respect of the two complainants where you were found guilty of indecently assaulting them by touching their breasts, that they could exclude, as a reasonable possibility you honestly believed your touching of their nipples in the course of performing what you described as lymphatic was in accordance with your belief as to accepted practice.
10 I should add that the evidence also revealed a gulf between the circumstances, in medical terms, when lymphatic drainage would be appropriate, for example, for treating patients with a grossly swollen limb as a result of suffering a condition such as lymphedema, and the circumstances when it is suggested in what on the evidence before me was a largely unregulated and uncontrolled massage industry, where it is commonly recommended as a means of removing toxins from the body or to assist with weight loss. On the evidence at the trial It would appear there is no rigorous (or even vaguely respectable) scientific evaluation of the claims made by those in the massage industry who offer lymphatic drainage to the unsuspecting public that provides any support for its claimed benefits in removing toxins or assisting in weight loss. As I understood the evidence, what scientific evaluation that has been undertaken shows it had no benefit in weight loss, and the claims to toxin removal rest on a profound misunderstanding of physiology. Even more concerning, it was clear that there was an even larger gulf between what, in physiological terms, would constitute an efficacious technique. Even if lymphatic drainage was effective in stimulating blood flow and assisting the lymph glands to work more efficiently, and so, to do their work of removal of toxins from the body, what was done here in the name of lymphatic drainage, was, at the kindest, done in woeful ignorance of the appropriate technique. There was simply no scientific or medical support for massaging the breasts of these women in the way you did, and the breasts only, in the name of lymphatic drainage.
11 The jury verdicts in the trial in respect of these 15 complainants did not finally dispose of all the charges against you, and on which you had been committed for trial to this court. Following the jury verdicts, your counsel, on your behalf entered into negotiations with the OPP to resolve all outstanding charges. Ultimately, notices of discontinuance were filed in respect of a further four complainants whose breasts you had touched in the course of performing what you described as lymphatic drainage. In respect of a further seven complainants, you pleaded guilty to seven charges of indecent assault, that is one in respect of each of them. By those pleas, you admitted you indecently assaulted each of these seven women also by placing your genitals in their hands whilst massaging them, in circumstances very similar to the circumstances related by the 15 complainants in the jury trial, and in respect of which the jury had found you guilty and in respect of one of touching the vagina of a complainant in circumstances very similar to the circumstances relating to the two complainants in the jury trial and in respect of which the jury had found you guilty.
12 And finally, you pleaded guilty to two charges of rape by digital penetration, in respect of yet two more complainants. Again, the acts occurred in the course of a massage. In respect of one woman, you admitted digitally penetrating her. Although not charged as separate offences, you also admitted rubbing your erect penis on her arm, touching her vagina, and massaging her breasts without permission. With respect to the other woman, in addition to the admitted digital penetration, you admitted to performing oral sex on her, and placing her hand on your erect penis as you did so.
13 So far as the other seven complainants to whom you pleaded of charges of indecent assault, some of them too complained of and identified other conduct of yours which although not separately charged as indecent assault, added to the gravity of the circumstances of those particular assaults, and the same can be said in respect of some, but not all, of the complainants in the jury trial who also identified conduct in addition to the conduct the subject of the specific charges, and which I take into account as part of the relevant surrounding circumstances.
14 Coming back to the jury trial, each of the 15 complainants was cross examined at trial, and each had been cross examined at committal. Although it was not put to any of them that they had lied, each was questioned about matters going to the reliability of her evidence, that it was your genitals she felt in her hand or across her body, and about her failure to say anything at the time. Those who said they thought they must have been imagining what was happening, or were not sure at the time that it was in fact your genitals touching them, or who did not make a complaint until aware of the police investigation were questioned about those matters. So, the credibility, and reliability of all 15 complainants was put in issue in that way. So, too were matters explored in cross examination which could be supportive of the foreshadowed defence of inadvertent touching. I want to make it very clear I am not being at all critical of Mr Higham. He was bound by his instructions, and I have no doubt, acted to the best of his considerable skill and ability, in accordance with them.
15 When you came to give evidence in the trial, you denied “knowingly” placing your genitals in contact with any of the complainants, and denied knowingly touching the vaginas of any complainant.
16 After the verdicts, you were assessed by the highly qualified clinical psychologist Dr Joel Godfredson. It is clear from what you told him, and contrary to the matters put by Mr Higham on instructions, and your sworn evidence at trial, that so far as those instances of genital touching were concerned, that you were well aware of what you were doing. Dr Godfredson reported you as saying:
Mr Van Dorp reported that his first offence occurred in 2000. He stated, “I don’t remember the massage so I can’t talk about that.” He said that subsequent offending included the rubbing of his genitals against clients’ hands. Mr Van Dorp said that this offending “started by accident” and that the victims “didn’t move their hand”. He explained, “It was like a dare to see if they would move their hand and what they were thinking. It was like they didn’t care.” He added, “I wondered what they were thinking, why they didn’t say anything.” The inference in his statement was that his client’s lack of response was perceived as consent to the sexual contact.
17 You described your behaviour as “flirtatious” You told Dr Godfredson it was “just an opportunity”, it was “available” to you, and you were being “cheeky” about it. You denied ever becoming sexually aroused as a result. You estimated to Dr Godfredson that the offending behaviour occurred in approximately one in 20 massages.
18 You were more ambivalent about the touching of the vagina charges, telling Dr Godfredson you didn’t do so in a sexual way, and whilst maintaining you had not intentionally done so, you also acknowledged you “probably got too high up in their groin”.
19 So far as the rape charges were concerned, you told Dr Godfredson you thought the response you were getting from each of the complainants was that they wanted you to touch them. Again you denied deriving any sexual pleasure from your conduct. Dr Godfredson was sceptical about that and so am I.
20 You also told Dr Godfredson that, having seen in the first trial the pain and suffering most of the victims had been through as they gave their evidence, you did not want to make it more difficult for the remaining victims.
21 There is a breathtaking hypocrisy about this. Despite your protestations of concern for your victims, you sat through a trial in which 15 complainants were required to recount, in detail that was obviously distressing and embarrassing for them, what you had done to them. They were, on your instructions, cross examined in the manner, and for the purposes I have described. In other words, the truthfulness of what they had experienced was denied. You then gave sworn evidence denying any deliberate touching. And then, when interviewed just weeks later, you admitted the conduct, and described it as “a dare”, “flirtatious” and “cheeky”.
22 Had you, at any stage during the trial as these 15 women in turn gave evidence, been as moved by their pain and distress as you professed to be to Dr Godfredson, and having regard to the acknowledgement to Dr Godfredson of the deliberate nature of your conduct, you could have stopped the trial and changed your pleas to guilty.
23 It is hard to avoid the conclusion that you were prepared to take a gamble on the complainants not being believed, and having lost that gamble, you sought to minimise your losses by pleading guilty to the remaining charges. You needed little time to reflect. I was told the day after the jury verdicts that negotiations to resolve the outstanding matters were underway.
24 You are not to be penalised for exercising your right to plead not guilty. However your profession of concern for the suffering of the victims is one that I have a great degree of scepticism about. Although you are entitled to a reduction in the sentence otherwise appropriate for the charges to which you did enter guilty pleas, for the utilitarian benefits of the pleas, and the sparing those victims the ordeal of having to give evidence again (they had all been required by you to submit to cross examination at committal), I do not consider in the circumstances that the guilty pleas evidence remorse.
25
In addition to the descriptions of your conduct I have already referred to in
Dr Godfredson’s report I take into account his opinion that you described a number of what he described as distorted beliefs which you used to justify or minimise your offending behaviour and I accept his opinion you demonstrate a tendency toward minimisation and denial.
26 This was predatory and exploitative behaviour. The victims were vulnerable: naked, or naked but for their underpants, undressed and prepared to let a stranger massage their naked bodies, because of that compact of trust that should exist between a masseur and his client. They were in your home, in a residential area, unable, because of their nakedness, and the relative isolation of the house, to feel that they had a safe way to protest or escape. The furtive, insidious, nature of the touching, your professed unawareness, your brazenness in that sense, your exploitation of the likely embarrassment consequent upon drawing your attention to what you were pretending you were unaware of, and the embarrassment flowing from the dawning awareness as time went on that what was happening was indeed genital touching and it was not, as they had first assumed accidental, and the difficulties they all expressed at that late stage in drawing it to your attention, as well as the manipulative way you exploited their interest in massage, their connections with you, your wife and children, or the local community makes this particularly egregious conduct.
27 Many of these women were, as you knew, vulnerable for other reasons. To pick just a few examples, one had just suffered a miscarriage, one was suffering post-natal depression and, having previously suffered from it, was particularly fearful of it again taking hold of her. She began to cry as you rubbed your genitals against her, and even that did not stop you. At least two were breast cancer survivors. One had experienced the loss of a close family member in the most awful of circumstances, and was involved in protracted court proceedings concerning that at the time she came to you. For many, a massage was a treat, a precious bit of time, or opportunity to relax, and indulge themselves.
28 Almost all spoke of the powerlessness of their situation, and the sense of violation, of the breach of trust, and of their dismay that they did not say or do anything at the time. They spoke of their fear they would not be believed because there was no witness, and because they did not protest at the time. All should appreciate: it was not their fault, and none of them is in any way to blame.
29 The victim impact statements were powerful and moving testaments, as was the evidence I heard at trial and the summary, the brief summary, in respect of those charges to which you have pleaded guilty.
30 It is clear that subject to matters personal to you, just punishment, denunciation, and deterrence must play a significant part in sentencing you.
31 Deterrence includes both general and specific deterrence. Dr Godfredson carried out a careful, thorough assessment of your risk of sexual reoffending, using a combination of well recognised tools and his own, considerable clinical experience in making a clinical judgment. In his opinion you present a moderate risk of reoffending. I accept his opinion.
32 Turning then to matters personal to you. You are 62, in reasonable health, and unaffected by any mental illness, intellectual impairment, psychiatric or psychological condition or substance abuse which might explain your offending, bear on the burden of imprisonment or moderate the sentence otherwise appropriate because of reduced moral culpability. There was nothing identified that creates a risk that imprisonment would be more onerous for you by reason of any such condition.
33 Your childhood, family life and schooling were unremarkable, in the sense that nothing blighted what was otherwise a comfortable upbringing other than the departure of your father from the family when you were a teenager, when he left the family to pursue a relationship with another woman.
34 You left school early, and have shown aptitude, and a desire to improve your educational attainments and employment prospects since then. You developed an interest in massage in your 20s. You completed courses in massage, and for most of your adult life have offered massage services as an adjunct to your main income earning activities. You have held responsible positions in sales, marketing and management for many years, and after a relatively short foray into running a massage and aromatherapy business full time with your wife, were re-employed by your previous employer. This speaks well of your skills and the regard in which you were held by those who have employed you.
35 An impressive bundle of testimonials was tendered. All spoke with surprise about the offending behaviour, and saw it as out of character for the man they knew. Your public persona, and indeed your persona with your own family, is at odds with the sexual predator you were with your victims.
36 You have been married for many years, and are the father of 2 adult children. Your wife and children have continued to support you, and appear shocked by the revelations of your behaviour. You express great distress at the financial plight your wife is left in as a result of the trial, your conviction, and the prospect of imprisonment. She has been remarkably loyal in the face of what must be a terrible betrayal. These offences all occurred in the local community, and many of the victims were known to her, or your children through local connections. In addition to the personal betrayal it makes living in the local community more difficult for her, and your children.
37 Although you express deep concern about the financial and emotional impact on your wife, you are yet it seems not prepared to accept this is the product of your own behaviour. Given the acknowledgement to Dr Godfredson of your guilt, your decision to divert family assets to your trial, rather than use them to make provision for your wife’s support during your inevitable incarceration following conviction is hard to characterise as anything other than monumental selfishness. I do not consider I should moderate the sentence otherwise appropriate because you are now distressed by the hardship your conduct has visited upon your wife.
38 The sheer number of charges means there is a certain artificiality that flows in the sentencing process. Principles of totality and proportionality are clearly brought into play. Although you fall to be sentenced as a serious sexual offender, it is clear that the presumption in favour of cumulation consequent upon that would result in a disproportionate sentence and it is not necessary to impose a disproportionate sentence in order to give paramountcy to protection of the community.
39 I have sought to reflect in the overall sentence, an acknowledgement of the offending in respect of each individual victim. I have fixed on what ultimately I consider to be a total effective sentence that is proportionate and conforms with the requirements of totality, and then fixed a non-parole period which should properly reflect your otherwise good character and prospects for rehabilitation, and to give you the opportunity, should the Adult Parole Board choose to release you on parole, for a staged and supervised return to the community, with time for a productive and offence free life in the community upon your release.
40 I have come to the very clear view that no sentence other than one of imprisonment is appropriate for each charge. That means that so far as the sentences after Charge 2 on the trial indictment are concerned you come to be sentenced as a serious sexual offender and I make that declaration accordingly.
41 Could you now please stand? Ronald Van Dorp, on the trial indictment you are convicted and sentenced as follows. In respect of Charge 1 concerning the first victim, a charge of genital touching, you are sentenced to be imprisoned for a period of six months. On Charge 2 in respect of the second victim, also a charge of genital touching, you are sentenced to be imprisoned for a period of six months.
42 On Charge 3 concerning the third victim, also a charge of genital touching, you are sentenced to be imprisoned for a period of six months. On Charge 4 in respect of the fourth victim, also a charge of genital touching, you are sentenced to be imprisoned for a period of six months. On Charge 7 in respect of the fifth victim, a charge of genital touching, you are sentenced to be imprisoned for a period of six months.
43 On Charge 9 in respect of the fifth victim, also a charge of genital touching, you are sentenced to be imprisoned for a period of six months. On Charge 10 in respect of the sixth victim, also a charge of genital touching, you are sentenced to be imprisoned for a period of six months. On Charge 12 in respect of the sixth victim, a charge of genital touching, you are sentenced to be imprisoned for a period of six months.
44 On Charge 14 in respect of the sixth victim you are sentenced to be imprisoned for a period of six months. On Charge 16 in respect of the sixth victim you are sentenced to be imprisoned for a period of six months. On Charge 18 in respect of the sixth victim you are sentenced to be imprisoned for a period of six months, and on Charge 20 in respect of the sixth victim you are sentenced to be imprisoned for a period of six months.
45 On Charge 22 in respect of the seventh victim, a charge of genital touching, you are sentenced to be imprisoned for a period of six months. On Charge 23 in respect of the seventh victim, a charge of touching her breasts, you are sentenced to be imprisoned for a period of six months. On Charge 24 in respect of the eighth victim you are sentenced to be imprisoned for a period of six months, and on Charge 25 in respect of the eighth victim, a charge of touching her breasts, you are sentenced to be imprisoned for a period of six months.
46 On Charge 26 in respect of the ninth victim, a charge of touching her vagina, you are sentenced to be imprisoned for a period of six months. On Charge 27 in respect of the ninth victim you are sentenced to be imprisoned for a period of six months, and on Charge 28 in respect of the ninth victim, a charge of touching her vagina, you are sentenced to be imprisoned for a period of six months.
47 On Charge 29 in respect of the tenth victim you are sentenced to be imprisoned for a period of six months. On Charge 30 in respect of the 11th victim, a charge of touching her on the vagina, you are sentenced to be imprisoned for a period of six months, and on Charge 31 in respect of the 11th victim you are sentenced to be imprisoned for a period of six months.
48 On Charge 32 in respect of the 12th victim you are sentenced to be imprisoned for a period of six months. On Charge 33 in respect of the 13th victim you are sentenced to be imprisoned for a period of six months. On Charge 34 in respect of the 14th victim you are sentenced to be imprisoned for a period of six months, and on Charge 35 in respect of the 15th victim you are sentenced to be imprisoned for a period of six months.
49 I will pronounce the cumulations from that indictment after I have imposed the sentences on the plea indictment. On the plea indictment in respect of Charge 1, concerning the 16th victim, a charge of genital touching, you are sentenced to be imprisoned for a period of five months. On Charge 2, concerning the 17th victim, a charge of genital touching, you are sentenced to be imprisoned for a period of five months.
50 On Charge 3 in respect of the 18th victim, a charge of touching her on the vagina, you are sentenced to be imprisoned for a period of five months. On Charge 4 in respect of the 19th victim, a charge of genital touching, you are sentenced to be imprisoned for a period of five months. On Charge 5 in respect of the 20th victim, a charge of genital touching, you are sentenced to be imprisoned for a period of five months.
51 On Charge 6 in respect of the 21st victim, a charge of digital penetration, you are sentenced to be imprisoned for a period of three years. On Charge 7 in respect of the 22nd victim, a charge of genital touching, you are sentenced to be imprisoned for a period of five months. On Charge 8, a charge of genital touching in respect of the 23rd victim, you are sentenced to be imprisoned for a period of five months, and on Charge 9 in respect of the 24th victim, the second charge of digital penetration, you are sentenced to be imprisoned for a period of three years.
52 In respect of all charges on the plea indictment convictions are to be recorded. I make the sentence on Charge 6 on the plea indictment, that concerning the 21st victim, the base sentence, and I direct the following cumulation orders. On Charge 9, the other charge of digital penetration, cumulation of 12 months on the base sentence and the other partial cumulation orders, and on each of Charges 1, 2, 3, 4, 5, 7 and 8 a cumulation of one month for each charge on each other, and the other on the base sentence.
53 That makes a total effective sentence on this indictment of four years and seven months. On the plea indictment the cumulation orders are these. On Charge 1, two months, on Charge 2, two months, on Charge 3, two months, on Charge 4, two months, on Charge 7, two months, on Charge 9, that is the second charge of like conduct concerning the fifth victim, one month.
54 On Charge 10, two months and on each of Charges 12, 14, 16, 18 and 20, the additional charges concerning the sixth victim of like conduct, one month on each of those. On Charge 22 concerning the seventh victim, two months in respect of that charge of genital touching, and on Charge 23 concerning the seventh victim, two months in respect of the charge in relation to the different type of conduct, the touching of the breasts.
55 On Charge 24, concerning the eighth victim, that is the genital touching, two months, and on Charge 25 concerning her, the touching of the breasts, two months. On Charge 26 concerning the ninth victim, the charge of touching her vagina, two months and on Charge 28, the second charge of touching vagina concerning her, one month, and on Charge 27, the charge of genital touching, two months.
56 On Charge 29 concerning the tenth victim, two months. On Charge 30 concerning the 11th victim, two months. On Charge 31 concerning the 11th victim, that is the charge of genital touching, two months. So two months for each of the different types of conduct concerning her.
57 On Charge 32 concerning the 12th victim, two months. On Charge 33 concerning the 13th victim, two months. On Charge 34 concerning the 14th victim, two months, and on Charge 35 concerning the 15th victim, two months. That is a total of three years and nine months to be served cumulatively upon the total effective sentence on the plea indictment, which means a total effective sentence on both indictments of eight years and four months.
58 So far as the plea indictment is concerned where I imposed a total effective sentence of four years and seven months, I declare that but for your pleas of guilty I would have imposed a total effective sentence in respect of those charges of six years and nine months. On the total effective sentence actually imposed of eight years and four months I fix a non-parole period of five years and ten months.
59 I declare that 73 days have been spent as pre-sentence detention and direct that that be counted and reckoned as part of the sentence already served. Under the Sex Offender Registration Act there is mandatory registration for a period of eight years in respect of Charge 1 on the trial indictment, and I do not consider it necessary in the circumstances to exercise my discretion to increase that term of sex offender registration for any further period.
60 I am required, Mr Van Dorp, to have provided to you a document setting out the reporting conditions under the Sex Offender Registration Act and to ask you to sign a document acknowledging receipt of that. You do not have to sign the receipt. The court record will show that you have been provided with it in any event and I will ask that Mr Hind or his instructor take it down.
61 While that is being done can the instructors check, and perhaps Mr Lewis as well, check the arithmetic?
62 MR HIGHAM: Your Honour, I have been checking and it has gone through.
63 HER HONOUR: Correct?
64 MR HIGHAM: It is correct, Your Honour.
65 HER HONOUR: Thank you. Have the orders that I pronounced reflect what I said I intended to do?
66 MR HIGHAM: They have, Your Honour.
67 HER HONOUR: Are there any additional orders required to be made?
68 MR HIGHAM: No, Your Honour.
69 MR LEWIS: No, Your Honour.
70 HER HONOUR: Have you checked the arithmetic, Mr Lewis? You did not have the benefit of the schedule that I handed your instructor.
71 MR LEWIS: I did not. Your Honour indicated four years, seven months on the first - - -
72 HER HONOUR: On the trial indictment? Sorry. Has the instructor been able to check the arithmetic? Are you satisfied it is correct?
73 MR LEWIS: Yes.
74 HER HONOUR: I'm sorry, we have lost the link. Take a seat please, Mr Van Drop. We will just wait for the link to be re-established.
75 INSTRUCTOR: Thank you, Your Honour. Mr Lewis has advised that he has checked the arithmetic as well and he is satisfied he made an error initially, but he has checked that now and he is satisfied and no other orders.
76 HER HONOUR: Thank you very much for that. Can you now please remove Mr Van Dorp?
77 MR LEWIS: I am back.
78 HER HONOUR: Thank you, Mr Lewis. Your instructor in your absence indicated that you had rechecked the arithmetic and you are satisfied that it is correct so I have just had Mr Van Dorp removed.
79 MR LEWIS: Thank you, Your Honour.
80 HER HONOUR: Can I thank both counsel and their instructors for their assistance throughout the trial and plea process? It was a long and difficult case and I was very much assisted by the professional manner in which counsel conducted themselves and their instructor supporting them, and the manner in which the trial and plea process was conducted.
81 MR LEWIS: Thank you, Your Honour.
82 MR HIGHAM: Thank you, Your Honour.
83 HER HONOUR: Thank you. Please adjourn.
Addendum to reasons for sentence
84 Since pronouncing sentence, it appeared that the form of order needed correction. In particular, that it was necessary to declare a total effective sentence on each indictment, and then, make an order directing partial cumulation of the total effective sentence on one indictment with the total effective sentence on the other.
85 What I had done was make partial cumulation orders in respect of the charges on the plea indictment, declare a total effective sentence on it, and then make partial cumulation orders in respect of the individual sentences on the trial indictment, without first declaring a total effective sentence on the trial indictment.
86 I have therefore, in chambers, restructured the partial cumulation orders on the trial indictment, and declared a total effective sentence on the trial indictment, then made an order declaring part of that sentence be served cumulatively on the sentence on the plea indictment.
87 The partial cumulation orders on the trial indictment, in order to arrive at a total effective sentence for it are arbitrary. For convenience, the total effective sentence on the trial indictment is of the same length as the total effective sentence on the plea indictment. The single partial cumulation period on the trial indictment is the same as the total of the individual partial cumulation orders I had declared when passing sentence, namely 3 years and 9 months.
88 The total effective sentence on the two indictments is the same, and the basis on which the partial cumulation orders were arrived at on both indictments is unchanged. It is only the form of the order is different.
89 The formal orders of the court, as revised are:
90 On the trial indictment (D13289185.1), the accused is convicted of all charges on which he is to be sentenced, and sentenced:
91 On each of charges 1, 2, 3, 4, 7, 9, 10, 12, 14, 16, 18, 20, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34 and 35, to imprisonment for 6 months. Charge 1 is the base sentence. One month of the sentence on charge 2, and 2 months of the sentences on each of charges 3, 4, 7, 9, 10, 12, 14, 16, 18, 20, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34 and 35 are to be served cumulatively on each other, and on the base sentence. The total effective sentence on the trial indictment (D13289185.1) is 4 years and 7 months imprisonment.
92 On the plea indictment (D13289185.2), the accused is convicted of all charges, and sentenced:
93 On each of charges 1, 2, 3, 4, 5, 7 and 8 to imprisonment for 5 months. On each of charges 6 and 9, to imprisonment for 3 years. Charge 6 is the base sentence. One month of each of the sentences on charges 1, 2, 3, 4, 5, 7 and 8, and 12 months of the sentence on charge 9 are to be served cumulatively on each other, and on the base sentence. The total effective sentence on the plea indictment (D13289185.2) is 4 years and 7 months imprisonment.
94 Declare that but for the plea of guilty, the total effective sentence on the plea indictment (D13289185.2) would have been 6 years and 9 months imprisonment.
95 Direct that 3 years and 9 months of the sentence on the trial indictment (D13289185.1) be served cumulatively upon the sentence on the plea indictment (D13289185.2).
96 The total effective sentence on the trial indictment (D13289185.1) and the plea indictment (D13289185.2) is 8 years and 4 months imprisonment. Direct the minimum term to be served before being eligible for parole is 5 years and 10 months imprisonment.
97 Declare that 73 days have been spent in pre-sentence detention and direct that it be counted and reckoned as part of the sentence already served.
98 Declare that the accused is sentenced as a serious sexual offender in respect of charges 3, 4, 7, 9, 10, 12, 14, 16, 18, 20, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34 and 35 on indictment D13289185.1, and charges 1, 2, 3, 4, 5 , 6 ,7 ,8 and 9 on indictment D13289185.2.
- - -
0
0
0