Director of Public Prosecutions v Walsh (a pseudonym)

IN THE COUNTY COURT OF VICTORIA

Revised
Not Restricted
Suitable for Publication

AT GEELONG

CRIMINAL DIVISION

THE DIRECTOR OF PUBLIC PROSECUTIONS

HAROLD WALSH (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE TINNEY
WHERE HELD:	Geelong
DATE OF HEARING:	Trial: 20 - 28 April 2022; Plea: 18 May 2022
DATE OF SENTENCE:	20 May 2022
CASE MAY BE CITED AS:	DPP v Walsh (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2022] VCC 737

REASONS FOR SENTENCE

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Catchwords: Indecent act x 5, incest x 1 and attempted incest. Trial; Guilty verdicts ;5 -7-year-old biological child of the prisoner: Offending in the early 2000’s. Previously sentenced by another Judge for subsequent sexual acts against 16 -18-year-old daughter of next partner over a decade later in years between 2012-2016; Impact of COVID-19. Verdin’s limbs 5 and 6

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore	Office of Public Prosecutions
For the Accused	Ms C. Flocke	Giorgianni & Liang Lawyers

HIS HONOUR:

Hugo Walsh[1], on 28 April of this year, after a relatively brief trial, you were convicted by a jury of five charges of indecent act with a child under 16 years of age, one charge of incest and one charge of attempted incest. The attempted incest was the statutory alternative to the completed incest offence specified in Charge 7 on the indictment. You were acquitted of that completed offence, both convicted of the attempt alternative. Further, you were acquitted of an indecent act charge relating to your son, Sam[2], which was Charge 2.
[1] A pseudonym
[2] A pseudonym
All the matters for which you have been found guilty were committed upon or against your biological daughter, Stacy[3], when she was between five to seven years of age back in the years 2001-2003. Her date of birth in April 1996. The offences occurred in the family home in Clifton Springs where she lived with you, her younger siblings, Sam and Katie[4] and your wife, their mother, Elizabeth Mack.[5]
[3] A pseudonym
[4] A pseudonym
[5] A pseudonym
I have no doubt at all that they occurred in a broader setting of other sexual offending against her as she described in her evidence. I am satisfied of that beyond reasonable doubt.
As I have said, Stacy was born in April 1996. There was a third child of that relationship, Katie, but she did not feature at all in any allegations. As to Sam, you were acquitted on Charge 2. That is important when I come to consider the impact statement of Elizabeth Mack. Sam is not a victim, so plainly I must not take into account any allegation that he was, whether relating to the matter for which you were acquitted or more generally.
You and Elizabeth Mack had married and were living together in Clifton Springs at the time of these crimes. You were married for something like 10 years. I am satisfied beyond reasonable doubt there was a high level of strictness and discipline in your dealings with Stacy. She spoke of her fear of you. The various sexual offences of which you have been convicted took place under the pretext or guise of what was described as a tickle game or ‘tickle time’. Your wife believed at the time you were playing harmless games with the children. In fact, you would be naked in the matrimonial bedroom. The acts took place when Stacy’s mother was out in the lounge room watching TV or looking after the baby, Katie, or perhaps doing both of those things.
The summary of prosecution opening adequately summarised the nature of the specific acts you have been found guilty of. Stacy gave evidence in relation to those various acts. Charge 1 was particularised as the first time you had ejaculated in her presence. You held Stacy’s hand over your penis and had her masturbate you to ejaculation.

ACCUSED: I curse in Jesus Christ (indistinct) against me.

HIS HONOUR: You were acquitted of Charge 2 relating to Sam.

ACCUSED: (Indistinct) fatherhood of my daughter.

HIS HONOUR: I note that Sam was not called as a witness.

ACCUSED: (Indistinct).

HIS HONOUR: I will have you removed if you keep doing this.

ACCUSED: You'll have to have me removed because you're speaking to falseness.

HIS HONOUR: I note that this - - -

ACCUSED: (Indistinct) may be struck down dead if these things have happened and - - -

HIS HONOUR: Remove Mr Walsh, please. Remove Mr Walsh.

ACCUSED: (Indistinct words).

HIS HONOUR: Remove him.

ACCUSED: (Indistinct words) because I didn't commit the crime. Thanks for removing (indistinct) talk to you.

HIS HONOUR: Ms Flocke, I am reluctant for obvious reasons to sentence someone in their absence but I don't think I am left with any choice. I will give you the chance if you want to, to speak with your client to see if he will sit silently in the dock while I pass sentence. I would prefer him to do that because I am passing a sentence upon him and I do not recall ever sentencing someone in their absence. The alternative is I am just not sure whether there is the ability for me to put him in a room and mute him. Let me just make inquiries that as a - - -

MS FLOCKE: Yes, Your Honour.

HIS HONOUR: Because that's what I will do. I’m simply not prepared to have him mucking around like that. So do you want to speak to him or not?

MS FLOCKE: Your Honour, I will attempt to speak to him but perhaps if we can make inquiries in relation to another room just as a backup, Your Honour.

HIS HONOUR: Yes. I am dead against putting the matter off. I have got the victim dealing with this matter. She is here to view the sentence. If your client wants to control or manipulate the proceedings, he won't, he can't. So if I have to, I will sentence him in his absence. But as I say, I will make some inquiries as to whether we can - - -

MR MOORE: Your Honour, I doubt very much whether the court would have a facility, a video facility, a secure video facility.

HIS HONOUR: Yes.

MR MOORE: But anyway, maybe an inquiry can be made.

HIS HONOUR: Look, I will make an inquiry. So look, I think what I will do, I will stand down briefly to give you a chance to speak to your client. It will have to be in the cells. I am not going to bring him back into court. If he is going to keep doing that we won't clap eyes on each other again. He will just get news of the sentence I’m imposing upon him. But go out and have a word to him and tell him my preference is he actually be physically in court but if he is he will need to shut up. All right.

MS FLOCKE: Yes, thank you, Your Honour. I think down in the cells there may be a facility to link him in. I know in the Magistrates Court they can do that.

HIS HONOUR: Yes.

MS FLOCKE: So I don't know, maybe we can make some inquiries if he doesn't agree, Your Honour, to sit quiet.

HIS HONOUR: If the only way I can muzzle him is by muting him then that's what I will do. I can't put a sock in his mouth. But I will make the inquiry, you make the inquiry of him. I don't think we can necessarily act on anything he says about his preparedness to sit silently I suspect because he just isn't prepared to do that but I would rather he was here when I am sentencing. But as I say, I will make the inquiry and so I will stand down then for the moment and we shouldn't be too long. But you go and see him, Ms Flocke, very quickly if you could.

(Short adjournment - Mr Walsh was moved to another Court where he could see and hear these reasons for sentence whilst he was placed on mute.)

HIS HONOUR: I will go back just slightly in my sentencing remarks

The summary prosecution opening adequately summarised the nature of the specific acts that you have been found guilty of, Mr Walsh. Stacy gave evidence in relation to those various acts. Charge 1, as I said, was particularised as the first time you had ejaculated in her presence. You held your hand over your penis and had her masturbate you to ejaculation.
You were acquitted of Charge 2 relating to Sam. I note that Sam was not called as a witness, nor was his VARE or his VATE played.
Charge 3 related to an occasion when you were naked, and you sat on top of Stacy with your erect penis touching her and placed your finger in her mouth. On another occasion you wanted her to touch your penis, she refused and you pushed her down and put your groin into her face. That is Charge 4.
Charge 5 to 8 occurred on a different occasion. Stacy was still in the very early years of primary school. No older than seven. She was in the master bedroom. So was Sam who was playing with some toys on the floor. I am satisfied of that beyond reasonable doubt. You were naked and placed her hand onto your erect penis. That is Charge 5 . You had her move her hand up and down on it. You then told her to stick her finger into your anus. She did as she was told and you told her to actually then do something with it but she did not really know what you meant. She wriggled her finger around. That is Charge 6. You then told her to turn around and she then felt something quite firm, hard and wet causing her a lot of pain at the site of her anus. She rolled away to get away from that pain. There is not any suggestion that it was an object. Plainly it was not. It was part of your body.
Looking back, she assumes, if not believes that it was your penis. She may very well be correct. Your relative position behind her and having an erection moments before supports that view. Also, her description of hardness and wetness. So too I suppose, the inability to penetrate and the pain occasioned. None of that is particularly suggestive to me of a finger. I referred to page 83 of the trial transcript. However I cannot know that for sure and it does not actually matter. I am dealing with you for attempt. I am satisfied beyond reasonable doubt that this was not an object and I will sentence you in relation to attempted incest most likely by use of your finger.
This was, as I have said, the alternative charge of attempted incest. You then grabbed her hand and had her masturbate you to until you ejaculated and that is the subject of Charge 8 . You then said the words after an act such as that, involving your seven-year-old daughter: 'My beautiful darling daughter’.
Consistently you would tell her not to tell her mother about these acts and others like them. You emphasized to her that ‘tickle time’ was between you and her. The need for secrecy was quite deliberately reenforced by you. Stacy said in her evidence that your conduct had instilled fear into her as to what might happen if she told others as to what you had done, that she might be hurt or even put outside. I am satisfied beyond reasonable doubt you were a controlling and domineering figure in her life aside from these sexual acts. She told the jury she knew what she was doing was not normal, that the acts felt wrong to her and that she was sad and uncomfortable.
On occasions she said she felt she was disappointing you by not doing what you asked her to do. It was a confusing feeling as she did not want to do what she was being asked to do, but was made to feel that somehow, she had disappointed you, her father. See the trial transcript p72 relating to Charge 4.
You and Elizabeth Mack separated in early 2003. Stacy described the inner conflict in terms of writing a Father’s Day card later that year and how that made her feel. She witnessed the other children being happy to write the cards and no doubt believing the sentiments that were contained within them. She didn’t feel that way about the card she wrote to you, her father. In fact, she copied someone else’s card and was uncomfortable with the positive sentiments expressed. They did not match her sentiments at all. She wanted not to see you but did not really know how to broach that with her mother. That card was the triggering event for her disclosure to her mother. So it was that in September 2003, just before Fathers’ Day, Stacy disclosed some of the touching to her mother. A report was made to the police. A VARE or VATE was conducted in 2003 with seven year-old Stacy and you were interviewed later in that same year and denied the allegations and they went no further at that point.
The matter was revisited following on from the later allegations made against you by your next wife’s child, Michelle[6]. Those allegations related to conduct occurring between 2012 and 2016 when Michelle was still at school and 16 or 17 and under your care, supervision or authority on one occasion, and 18 years of age on the other occasion when compelled to touch your anal area. I should make it plain that to all concerned, both Stacy and anyone else connected with this case, that there can be no reporting of these proceedings in any manner likely to lead to the identification of any victim in relation to any of your offending.
[6] A pseudonym
Stacy was then spoken to by the informant in that other matter and a statement taken and at one point there was some consideration being given to running a tendency argument relating to that other victim. That did not take place and there was a separate trial in relation to those other matters and in February of 2020 you were convicted of one charge of indecent act with a child aged 16 or 17 under your care, supervision or authority and one charge of sexual assault by compelled touching. You were acquitted of a charge of incest. You were sentenced by Judge Hampel on
30 October 2020 to four years with a non-parole period of two years, but with credit for over 250 days that you had served by way of pre-sentence detention. It follows then that you are beyond the non-parole period at this point so there is no need for me to fix a new single non-parole period under s14 of the Sentencing Act.
The sentencing remarks of Judge Hampel were frequently referred to by your counsel Mr Thyssen on the plea before me so what I will do is I will mark those sentencing remarks as Exhibit 3 on the plea before me. They are the sentencing remarks of Judge Hampel under the pseudonym Walsh.[7]
[7]DPP v Walsh (a pseudonym) [2020] VCC 1740
Of course, having read those sentencing remarks, that offending whilst undoubtedly serious, it is nowhere near as serious as the offending I am dealing with.
You gave evidence before me at this trial. In your evidence you spoke of your own background of sexual abuse at the hands of your own father and sought to use that background and the physical and emotional impact it had had on you as making impossible and really quite unthinkable the commission by you of any of these crimes, the point being made in your evidence that how could you do such a thing as was alleged, knowing as you did, the dire and lasting impacts such conduct had had on you.
Your evidence has been rejected by the jury. I’m not surprised. The case against you was a powerful one. Stacy Walsh was a most impressive young woman who despite your best efforts, has gone on to make something of herself. Her evidence was compelling, including the circumstances in which she complained to her mother in 2003. She was from my observation a tremendous witness. She was plainly honest, plainly doing her best to describe these acts out of many others.
She has not had contact with you since these times and the suggestion that her allegations made in 2003 were connected up with advancing her mother’s position in a family law case was, to say the least, problematic. She scarcely had any idea about the nature of those proceedings. She was then only seven. She agreed she didn’t want to see you and the reasons for that were blindingly obvious. The family law issues petered out many years ago.
I see no need then to set out any more of the evidence which was led in support of these charges. As I say, Stacy gave evidence consistently with the way the summary of prosecution opening had set out the allegations. The matters for which you have been convicted are no longer allegations. They are now proven offences. I must sentence in a manner consistent with the jury's verdict. Additionally, for any factual matter or finding, which would aggravate the matter, I must be satisfied of the matter beyond reasonable doubt.
I have said already I am satisfied beyond reasonable doubt that this charged conduct was surrounded by many other sexual acts against Stacy. You do not fall to be sentenced for that uncharged conduct but undoubtedly that was the context.
You have no prior criminal history at all. You do however have that relevant subsequent offending that I have mentioned that was dealt with by Judge Hampel in
October 2020. I note the nature of the proven allegations in that case with focus on your genital and anal area at your behest and the defence that was run that one act did not occur and that the other was some medical or hygienic procedure being carried out with no sexual element. It appears that you filmed one of the acts and had an erection on each occasion. There was also tendency evidence displaying your sexual interest.
The offence of indecent act carries a 10-year maximum prison term, incest a maximum of 25 years’ imprisonment and attempted incest a 20-year maximum.
Impact
There are two impact statements in this case, one from your former wife, Elizabeth Mack, and one from your direct victim, Stacy. Though I will soon move on to discuss the various matters in mitigation raised on the plea, this is not all about you. I am sentencing you for these serious crimes committed upon Stacy. Crimes that have had a sizeable impact. I will come back in a moment and discuss some matters mentioned in Stacy’s victim impact statement. As to Elizabeth Mack’ impact statement, she speaks of the impact of the crimes upon her two children and she deals at some length on the impacts upon Sam.
You have not been found guilty of any acts in relation to Sam. There was discussion on the plea about the inadmissible portions of that impact statement. Of course I put those matters out of my mind altogether. I am not dealing with you for any crimes upon Sam or any deficiencies as a husband, or for leaving your wife in debt if you did, or visiting the school when you should not have, if you did. As I say, I will act only on the admissible portions of her victim impact statement. For instance, she discusses the way that Stacy was affected and for that matter, the impact upon her of learning of Stacy’s fate, her own sense of guilt as a mother. Of course, those things are perfectly permissible for me to take into account. They are foreseeable impacts.
She speaks of the hypervigilance in and anxiety that Stacy had in relation to being around male figures, be they doctors or dentists, or counsellors, or teachers, or driving instructors. Her observations of her daughter’s loss of confidence, sense of trust and her fears. I take into account the permissible portions of her impact statement.
Then I have Stacy's impact statement. She read it aloud. She was a child, but of course now she is a young woman of 26 and having seen and heard her read out aloud that impact statement, an impressive young woman at that. The victim impact statement encapsulates why incest is such a serious criminal offence. It is so terribly damaging and conflicting. Her impact statement and her evidence before me spelt that out. The impact persists. Of course, it does. I will not mention all of what she said. I take into account the impact statement and I mention just a few of her sentiments.
She speaks of the impact of your crimes upon her intimate relationships and the way it created or led to her distorted body image. A sense of taint, even of dirtiness arising from your crimes upon her. The sense of anger, frustration, hurt and fear. The disenchantment and loss of trust and respect. Her sense of isolation when growing up. Your crimes leaving her with a sense of mortification about herself. Years of psychological support that cannot change or alter what was done and the ongoing impact.

Then of course there is the difficult task she describes of turning back and focusing on these matters as a witness must, answering questions and making statements and attending court and the resurfacing of these unpleasant events and the memories, all of it pulling her away from her current life and then trying to resume her every day new life at the end of that process. She describes the taxing nature of that exercise. She describes also the pain of watching that little girl on that VARE. That is, a little girl she wanted to save but could not. She describes the ever present nature of the impact. A move to another State does not shake off the impacts. The passage of 19 years doesn’t shake it off. There is some optimism as she speaks of a time when perhaps she will be able to leave her past in the past, but she is not at that place yet and of course she may never be. The fact is her past will always be part of her past and your crimes will always be with her in that sense.
Incest has this lasting effect. That is why it is so serious. She speaks of the social and the financial impacts and concludes by saying that safety is something she lost and having lost it she has struggled to ever regain it. It is, if I may say so, a remarkable impact statement by a very impressive young woman.
Of course I do not act emotionally or let the impact of these crimes swamp the many other sentencing considerations which I am obliged to take into account. I have to guard against that and of course I do. But I am obliged to take into account the impact of your crimes. It has been profound.
In Mitigation
Mr Thyssen conducted the plea on your behalf. He prepared a three page outline of written submissions and relied upon an old report from Ms Carla Lechner, a psychologist. This was a report that came in for some level of criticism in the sentencing reasons of Judge Hampel.[8] To some extent Mr Thyssen has been hamstrung by your lack of co-operation since verdict. That really is a matter of choice by you. You adopted a similar approach after the verdict in 2020 and that matter was held in suspense for over eight months. I note Her Honour dealing with the reasons for that delay in her sentencing reasons.[9]
[8] at paragraphs [22], [28], [29], [64] and [67]
[9] at paragraphs [12] to [20]
If I thought there was any value in calling for a more up to date report or for that matter, permitting your legal team to obtain one themselves, that would have been done or permitted. However, I can hold no confidence that you would in any way cooperate. You choose not to and have expressed that again here this morning. Nor does Mr Thyssen urge me to adjourn off the matter. As I say, had he done so, I would have. His plea represented, as he described it, ‘a distillation of reports, notes and written previous instructions given on earlier occasions’ (see p1). He told me briefly about your personal and family background, including details of your educational and employment history. He detailed your relationship history and the health issues that you have had in the past and currently. He focused on the impoverished background you had yourself and the level of damage that persists in your life. He mentioned your response to these verdicts and your custodial experience since. I saw your immediate response to this verdict, disobeying as you did, my direct requirement that the jury's verdict be respected. Rather than doing that, you rejected the jury’s verdict audibly in their presence, and of course I have also witnessed your outbursts here today that required me to have you removed from the dock and placed into a dock in another court and put on mute.
Mr Thyssen made some submissions as to the objective gravity of the offending and matters of sentencing principle at play. He made submissions about the existence of some support from your partner and her mother and the absence of any relevant prior criminal history. He took me to a handful of Court of Appeal cases dealing with the relevance of disadvantage and some cases dealing with current sentencing practice. He also took me to Judge Hampel’s sentencing reasons and really sought from me similar findings in a number of areas.
I raised with Mr Thyssen the aspect of those findings being based on then current materials before that other Judge and the difficulties presented by your uncooperative stance since verdict. I raised in your presence the difficulties posed by the way you were having the matter conducted and, in your presence, invited you to change your approach, but of course you have not relented. Quite the opposite actually.
He relied upon the following matters in mitigation and there were not many:
·     Your disadvantaged background;
·
An increased burden and risk of deterioration in your mental state arising from the conditions spoken of in Ms Lechner’s report.
(Verdins[10] limbs 5 and 6); and
·     The impact of some physical health conditions upon your custodial burden.
[10]R v Verdins [2007] VSCA 102; 16 VR 269; 169 A Crim R 581 (“Verdins”)
He conceded this was serious offending and deserving of condign punishment but argued that some mercy might be extended to a thoroughly damaged individual such as you.
Prosecution
Mr Moore who prosecuted in the trial and at the plea had little need to make any submissions. It was accepted by your own counsel that a substantial prison term was required here and obviously one with a non-parole period.
I will return in one moment to discuss the various submissions made on your behalf, but I will turn firstly and relatively briefly to your background.
Background
You are 56 years of age and you were born in the Geelong area in October 1965. You were one of six children and your parents were migrants and members of the
Jehovah’s Witness faith. You claim that your childhood was marred by sexual abuse at the hands of your father, not to mention some level of domestic violence. You were educated to year 10 level and worked in a variety of jobs including in roofing and the tourism industry up in Queensland. You have been married twice, on each occasion for around 10 years. You are in a relationship, I am told, with
Anita Payne[11] and have some support from her and her mother, Patricia Burns.[12] I was told by Mr Thyssen that they believe your story. They really should not. I note that Ms Payne has not been sighted since the verdict and I do not really know what to make of that. You see none of your children and the reasons for that are pretty clear.
[11] A pseudonym
[12] A pseudonym
It is a dated report from Ms Lechner and not one without problems, even leaving aside the passage of time since she saw you. As I have indicated, Her Honour
Judge Hampel raised a number of issues in relation to that report having, as she did, access to other reports that are referred to in Ms Lechner’s report and also the Justice health records that gave a more complete picture (see paragraphs [20] to [53] of Her Honour’s sentencing reasons). That analysis showed differences in your self-report of the nature and the extent of your childhood trauma and of its impact upon you, as well as differences in your self-report of the nature extent and cause of bowel problems and your predicament in custody. I have the additional issue of course of dealing with you for these proven crimes. Ms Lechner seemed not to assess you as having any sexual deviancy. That is impossible to accept given the nature of the previous allegations in tandem with the proof of the matters I am dealing with. In fact, it was startling to reach that view, if she did, even in the face of the previous allegations viewed alone. She seemed to act on your account of having no sexual interest in Michelle and those acts having no sexual component and arising from your medical needs. Of course that was totally rejected by the jury in 2020.
The position now is that in two very different phases of your life, you have sexually assaulted your own child, Stacy, and your stepchild, Michelle. One victim, Stacy, a little girl in the early 2000s in circumstances of obvious deviancy and one victim, Michelle as a 16 to 18-year-old over a decade later. Again, in a setting of obvious deviancy. Whatever you may have told Ms Lechner and whatever she may have then believed or reported, or whatever the test scores disclosed, it is inescapable that you have had some past and ongoing sexual deviancy.
Disadvantage
I have mentioned your personal background. There is a real question mark in my mind as to how much of any self-report I should act on in your case. It was
Mr Thyssen who relied upon the reasons of Judge Hampel, taking me to portions of those sentencing remarks and yet that same Judge raised issues as to either your accuracy, reliability or consistency as a historian. Paragraph 55 sets out her conclusions following a very lengthy analysis set out in many of the preceding paragraphs. Ms Lechner’s report was relied upon on the plea before me and yet
Ms Lechner herself commented on p3 as to the differing account you had given to
Dr Kornan as to the nature of the abuse at the hands of your father.
Judge Hampel in her customarily excellent reasons for sentence went on to make various findings. The fact that another judge has made findings does not determine the findings that I ought make. Her findings whether mitigatory or otherwise do not bind me at all. Her reasons are not a precedent which I must follow. She made her findings on the materials and submissions placed before her. That is my task as well. I have different materials. Having observed you, including your conduct at verdict and earlier this week at the plea, and today for that matter, I am left with a sense that you are very much prone to manipulation and control.
I join with Judge Hampel in saying I really cannot know with any certainty exactly what took place in your early life. It is not actually critical. That is because I am ultimately prepared to accept on the materials that you were likely sexually abused yourself as a child and that hence your childhood was, to say the least, an unenviable one. So I find, as Judge Hampel did,[13] the existence of sexual, verbal, emotional and physical abuse with a life-long impact upon you. Is there any link between what happened to you as a child and what you have yourself visited upon your daughter in this case? Maybe there is a link, but I certainly cannot find that on the balance of probabilities. There is just no opinion to that effect and I am not free to just guess.
[13] At para [56]
I am then not satisfied there is a direct link or nexus between your background and the criminal acts as there sometimes is. See the case of Snow.[14] That does not remove my need to take into account your background.These Bugmy[15] principles as they have come to be called, do not depend on the existence of a direct nexus. That said, they will generally be given greater weight where there is a direct nexus.
[14]DPP v Snow [2020] VSCA 67
[15]Bugmy v The Queen [2013] HCA 37; 249 CLR 571
The fact is an offender’s circumstances and experience during their childhood and formative years must be considered in sentencing, not just out of some historical curiosity but because the effects of social disadvantage do not diminish with time. They are likely to have profound and lasting consequences and, in some cases, they can explain, but not excuse, the offending. They do not here by the way. Taking lifelong damage that is the result of childhood exposure to violence or sexual or physical abuse, or neglect into account when sentencing is the mark of a humane society. It is no answer to say that those events occurred all those years ago when you were a child. The effects of these things do not just diminish with the passage of time. They do leave their mark.
It will always be matter of what weight to attribute to evidence of a significantly disadvantaged background. Disadvantage will not attract the same weight in every case or in the same way. Sometimes it might lead to a substantial reduction in moral culpability and also a sizeable reduction in the weight to be given to general and specific deterrence. That is not the position in this case. Sometimes it might be enough to take it into account in a general way without any of these sizeable reductions. This will always be determined by the nature of the evidence. It will depend on the nature and extent of the disadvantage, the nexus if any, with the offending, but also the nature of the crimes and the relative importance in a particular case of sentencing considerations including deterrence, community protection and rehabilitation. See the case of Terrick[16]. It does not all flow in one direction either by the way. It can even lead to a finding of a greater need for community protection.
[16]DPP v Terrick [2009] VSCA 220
It seems plain to me that you have some warped or strange sexuality, likely a product of your early experiences. Whilst I cannot draw any direct link between those early experiences and this criminal conduct decades later, nonetheless I believe it is appropriate to take into account your background in a mitigatory fashion. There can though only be some small reduction in your moral culpability. In that sense I am giving full weight to your background. See the cases of Bugmy,
Marrah,[17] Snow and Terrick. Walker[18] and Baroch[19] are the more recent ones.
[17]Marrah v R [2014] VSCA 119
[18]Walker v R [2019] VSCA 137
[19]Baroch & Anor v R [2022] VSCA 90
Verdins
I turn now to the submissions made as to the application of the fifth and sixth limbs from the well-known case of Verdins, a decision of our Court of Appeal dealing with the impact upon the sentencing process of conditions existing either at the time of offending or sentence or both. That is something of a simplification of those principles by the way, but suffices for present purposes. Judge Hampel had a relatively current report with recent psychometric testing disclosing the level of your then distress.
Ms Lechner saw you on two occasions in September 2020. Judge Hampel sentenced you on 30 October 2020. There was currency then to Ms Lechner’s views and the information upon which it was based. That is not the position now at all. I can take nothing from the results of the Beck depression inventory or the results of the
Kessler distress scale. Those tests were administered in September 2020 to canvas symptoms experienced over the previous two or four weeks. Nor am I greatly assisted by any view expressed by Ms Lechner as to your then presentation to her.
I am however prepared to find as Judge Hampel did, an increased prison burden arising from some of the conditions spoken of in that report. Some related to your response to the verdict and I cannot have much regard to those historical matters. Nor for that matter your response to this verdict. Those things reek of an attempt by you to control or manipulate the proceedings. I put them aside. I am not going to reward you for ongoing hostility for and rejection of the verdict of the jury. However, the underlying conditions of anxiety and depression and more particularly the post-traumatic stress disorder are amenable it seems to me to some sentencing reduction in accordance with the fifth limb of the case of Verdins. They are seemingly not reactive to the verdict.
Whatever might be said as to your capacity for exaggeration and manipulation, I sense as Judge Hampel did, that you are a damaged individual and you certainly see yourself as one, there is no question about that. Prison is not easy for one such as you and there is an increased burden. So there is some allowance made for that fifth limb. Given the age of that report, there is no particularly satisfactory basis on the materials before me to make any judgement as to the serious risk of significant deterioration in your mental state. However, given my findings as to the extent of your damage and the application of the fifth limb, in a way they inform the application of the sixth limb.
It is hard to imagine you will thrive in prison. You have not been, and it is likely that you will not in the future and I am prepared to find that this does enliven the
sixth limb of that case. I note also your intransigence in relation to giving instructions. You will not take steps to assist yourself. As a result, I have no up to date report and I have not seen any point calling for a Forensicare report given that you previously thwarted Judge Hampel’s efforts on two occasions to obtain such a report and plainly from your presentation, you would likely do so again. So I have no update report.
However, I cannot imagine a psychologist not endorsing the likelihood of deterioration in the way that Ms Lechner did in her old report. I am prepared to make some allowance forthis sixth limb. That may be too favourable to you but it is best to err in that direction. None of the other Verdins principles are engaged here at all. Nor was
Mr Thyssen suggesting they were.
I am not able to accept Ms Lechner’s risk assessment set out in that report for the reasons I have pronounced, and I will say more about that shortly.
I turn then to consider the various other matters in mitigation raised by your counsel. Before doing so I say this: Unlike a case where there has been a guilty plea, with the sizeable benefits that accrue in such a setting as that, here you have chosen to run a trial. That was your right but it follows that there are none of the very sizeable sentencing benefits applying to one who pleads guilty and does so in the midst of the global pandemic. Nor is there any hint of remorse here at all. In fact, there is none. Not a shred. You are completely remorseless, and I am satisfied of that beyond reasonable doubt.
COVID-19
Let me deal with the impact of COVID-19 upon your time in prison. There was no submission on that topic and I raised it at the end of the plea. No doubt the absence of any submission flowed from the existence of the sentence that had been imposed in 2020. You are still serving it, so I must really look forward rather than backwards in this case in assessing the impact of COVID. I accept that it has not been a good time to be in prison, of course it has not. Prison has been a more stressful place owing to COVID-19, no doubt about that either.
For a very sizable period in which you have been held to date, you have not had access to visits or the full range of courses. There have been some periods of quarantine or lockdown. Of course, that has been as a sentenced prisoner and
Judge Hampel took into account these various matters in her original sentence. I cannot count it twice, though I note that being on remand with these matters would presumably have impacted upon the ability of the Adult Parole Board to consider your release at the expiration of the non-parole period some months back. I do take that into account.
On the COVID front, as to what lies ahead in the future, that is really impossible for me to gauge. Things have looked up since March of this year in a prison setting at least where visits resumed.
Those whose job it is to run the prisons will be able to reflect on the impact of any past and ongoing limitations on a case-by-case basis. They would have the power to address any increased burden in your actual case by way of conferring emergency management days. I cannot know if that will take place or not. I do not proceed on the assumption it will. Indeed I am prohibited from that style of speculation.
We are not beyond the impacts of this virus though with case numbers seemingly on the march again. It seems possible there might be some ongoing prison issues connected to COVID in the next handful of months and I take that into account as
Mr Thyssen urged me to. It is not a large matter at all.
Increased burden: Physical health

I also take into account your state of physical health. It was not being submitted that you cannot be appropriately treated and medicated in prison and there really is virtually no objective information before me as to the nature of the physical conditions or about the real impact of these physical conditions that you suffer from. There was undoubtedly a bit more information before Judge Hampel including evidence led on the trial as well as placed before her on the plea. She did accept there had been episodes of faecal incontinence in your adult life and some anal fissures. She could draw no conclusions as to what had caused either condition. I am very much in the same position. Mr Thyssen has described your worry about incontinence amidst the trial and limiting yourself to a fluid diet.
I do accept that the bowel condition spoken of will increase your burden to some degree and I take that into account.
Rehabilitation
I turn then to your prospects of rehabilitation. You are 56 years of age with no formal prior convictions at all. I do not ignore that fact. I am dealing with you for events occurring in the early 2000’s. However, doing so, knowing that those acts were not themselves isolated or occurring on a single day, and also in the knowledge that there were sexual offences committed upon your much older stepdaughter over
a decade later. That conduct targeting Michelle is documented in Judge Hampel’s reasons. So whilst you have that absence of formal prior criminal history, it can hardly be said the offending was out of character. It was not isolated.
I have no explanation for any of the offending that I am dealing with. You deny it. You deny any sexual interest in children. You denied these crimes as you did those committed upon your stepdaughter. You deny any sexual deviancy. I am satisfied beyond reasonable doubt there is some sexual deviancy. Plainly there is and plainly it is not transitory in nature. Your conduct speaks for itself. I do not know precisely what it is or what caused it. It casts something of a real shadow over your rehabilitative prospects. As I have said, I do not accept the risk assessment in the report of Ms Lechner. Indeed Mr Thyssen accepted that it could not be relied upon. That low risk assessment is seemingly based purely on test scores and your responses to items listed on the test.
The input into the risk assessment protocol of there being no sexual deviation and no attraction to children is worthless. I accept that Ms Lechner faithfully reports the scores that were achieved on the test but what do they really mean as to your level of risk? They mean nothing. Ms Lechner did not even have the summary of this offending that I am dealing with and as I have said earlier, seemed to accept your account of the later offending as involving no sexual element or any deviancy. It was all a bit odd. She was not actually providing an opinion based on her own expertise and interview. Also, the session with her was conducted in the presence of your partner. That was the only condition upon which you would see her. That was hardly ideal and of course was not conducive to frankness or full disclosure.
I would hope that the time you have spent already and the time you will spend in the future, undergoing this and the other sentence will serve to deter you to a degree. One would hope that you will be compelled to do some counselling or the sexual offenders’ program, though your denial of the offending will pose something of an impediment to success in that regard. It maybe even be an impediment to entry into the program. Hopefully you will alter your position and be prepared to openly discuss these crimes. One would hope that counselling and treatment might reduce your risk but without acknowledgment of any wrongdoing, without acknowledgement of sexual attraction to children, that is likely, an overly optimistic view. Indeed your outbursts again today do not leave me with any confidence at all.
It is very hard for me to assess your risk at this point. It is clearly not illusory. I do not believe it is low. It is true you will have no contact with your own children but you are still only 56 years of age. Your partner and her mother believe you. They should not but they do, so that is not a protective factor at all. I am told your partner has no children. You deny the offending and hence have no recognition of or insight into any serious issues or any need to seek treatment or to in any way alter your ways. You will be required to report any contact with children under the
Sex Offender Registration Act
for the rest of your life.
I note this offending occurred in a setting where the child was in your home. So too the later offending. So it did not involve you seeking out a victim from outside the home and nor is there any reason for me to think that you would engage in that sort of conduct. I take it as given that you will not be having access to any of your own children. Indeed doing the sums, only Matt[20] is still a child and he will not be when you are next in the community.
[20] A pseudonym
I have no doubt at all though that you pose a risk to any child who happens to fall into your sphere in circumstances where you can have unfettered access to them. Hopefully those opportunities will not arise, but it is hard not to be very guarded as to your future prospects. I am prepared to find that you have some prospects of rehabilitation but I really can put it no higher than that.
I am dealing with you many years after these crimes. That is common. This is not a case of you living with the anxiety of this matter hanging over your head for all these years. You wanted these allegations to never see the light of day. You actively discouraged Stacy from reporting your conduct to her mother and when she did after you had separated from her mother, you then lied about your conduct in the police interview, as was your right, and the matter went away. It only surfaced in the setting of the investigation of the new allegations brought against you by Michelle.
There has been some delay brought about by COVID, which I do take into account, but some of the delay post-verdict in trial one was brought about by you. It was that conduct that led to the delay of the second trial and by then, COVID had then struck.
Delay is not at all unusual in this sort of matter. It is a product of the crime, with Stacy
aged seven and with a limited ability to articulate but one who, as an adult, was able to give a far more complete account of the acts that you performed. There was the earlier difficulty in articulating and even understanding the crime through a child’s eyes. That is the child that you abused in that footage. She now has the power to speak of your crimes and has done so. She has done her best to explain the many impacts.
The fact that much time has passed since the sexual offending was committed against Stacy is irrelevant to my assessment of the objective gravity of the offending and of your culpability. Delay is not a matter of any sizeable mitigatory value at all here at all, nor was it relied upon as such.
The Offences
I turn now to the offences. I see no need to set out all the detail again. I have described the acts and I have described the setting. Stacy was your daughter. She was just a little girl. We have the VATE or VARE footage marked as Exhibit B in the trial. That shows her size. That shows her age as at the date of disclosure back in 2003. She was younger when you offended against her. That is the child you offended against, your child, a person whom you had a positive duty and obligation to protect. You had a moral and a legal duty and it meant nothing to you. You used her as a sexual plaything and in doing so totally betrayed that trust and perverted that relationship. The impact has been vast. You have and had at the time a very decent understanding and appreciation of the impact of sexual crimes committed upon a child by a parent.
Sexual offences against children have always been viewed seriously by the courts. Of course the crime of incest, or attempted incest for that matter, has built into it by virtue of the increased maximum penalty the aggravation posed by the familial relationship. That is why incest has a 25-year maximum prison term. So those things cannot be treated as aggravating features of the crime. The crime and the maximum penalty recognise those matters. The indecent acts are quite different. Not every indecent act occurs in a setting of breach of trust. These ones did and that breach of trust was very significant indeed. You were her father. She should have been safe and she was not.
Purposes
I am required to consider a number of matters, including the nature and the gravity of offending, the impact of the crimes and the maximum penalties. I have to also consider a number of purposes of sentencing. Rehabilitation is one of the purposes of sentencing. I do not ignore that purpose however, I am not too upbeat as to your prospects. I can only really be quite guarded.
I must take into account the other purposes of sentencing, including specific and general deterrence, protection of the community, denunciation and punishment.
You must be punished justly and proportionately. Punishment is an important purpose of sentencing for these sorts of crimes. I must also denounce your conduct. That is also of real importance. This sexual conduct in relation to your daughter must be strongly and roundly denounced and I do denounce it. You should be ashamed of yourself. Regrettably, you are not. You feel no shame or guilt at all. None.
There are other relevant sentencing purposes here. There is deterrence, both general and specific. There is also community protection.
I must consider the need to deter you from offending in the future. That principle known by us lawyers as specific deterrence has a role to play here owing to the nature of this offending and my views about your future prospects and the risk that I believe that you pose. The fact that you have committed serious sexual crimes upon
two girls is of course a major worry. One, your daughter in 2001 to 2003, one, your stepdaughter well over a decade later, and not too distant in the past from today’s date. There is your complete lack of acceptance of any wrongdoing and hence no desire to atone for your crimes or even to reflect upon the serious error of your ways and the need for major change. I must seek to deter you. That is very obvious.
I also mentioned general deterrence. General deterrence is an important consideration in this sort of case. It relates to the need to deter other offenders. It is an important purpose of sentencing for this sort of offending. This court must send a loud message to other individuals in the community who might be minded to commit these sorts of serious sexual offences. Sexual offences against children are abhorrent and they must be actively discouraged by the sentences imposed in the courts. A loud message must be sent to those who may consider engaging in the sort of conduct that you engaged in. General deterrence is an important sentencing purpose in this case and that much is conceded by your counsel Mr Thyssen on your behalf.
I must also seek to protect the community from you. In fact, community protection is the principal purpose of sentencing for all of these matters as you fall to be sentenced as a serious sexual offender on every charge on this indictment, given the existence of the two guilty verdicts and the sentences imposed in 2020. Those matters trigger these provisions in my sentencing exercise. The Sentencing Act marks out the paramountcy of community protection in this case. See s6D(a).
Current Sentencing Practice
I must take into account current sentencing practices and I do. They are not a controlling factor but only one of a large range of matters which I must take into account. They do not dictate the outcome. I have looked at the
Sentencing Advisory Council Snapshot No. 242 of August 2020 in relation to the crime of incest. Also, the Snapshot relating to indecent act in No. 258 of 2021. I have also looked at the more up to date online statistics for incest, both the repealed s44 variety and the existing offence under s50C(1), as well as the statistics for indecent act.
Statistics do not drive my task and there is enough case law spelling out the inherent limitations of this sort of material.
As to the incest snapshot there are reasons to exhibit caution when looking at that document over and above those usual inherent difficulties posed by such statistical material. Those statistics are drawn from sentences passed from 2014-15 to
2018-19, ending on 30 June 2019, and the snapshot itself at ‘Endnote 4’ towards the bottom of that document speaks of the ramifications of the case of Dalgliesh.[21] Much of the data would predate that decision. Further, some if not much of the data would relate to matters where there has been a guilty plea.
[21]DPP v Dalgliesh [2017] HCA 41
The sentencing practices for the crime of incest have undergone significant and dramatic changes in this State owing to the very strong observations made in the cases of Dalgliesh. I say 'cases' as there were strong statements in the
Court of Appeal in 2016[22] and that decision went on to the
High Court, which was more concerned with the role of sentencing practice. It was then remitted back to the Court of Appeal, where again strong statements were made by that court, this time in 2017.[23]
[22] [2016] VSCA 148
[23] [2017] VSCA 360
The fact is the crime of incest has always been viewed very seriously by the Parliament and by the Courts.
In the decision of RBN v The Queen[24] the President of the Court of Appeal stated the following:
This court has often said that incest is a crime of great seriousness. It is an appalling crime involving the worst kind of breach of trust as between a parent and child and it is notorious that it causes long-term damage to the child victims, whom it is the parent's first obligation to protect.
[24] [2011] VSCA 261
Many cases from our Court of Appeal have re-stated or clarified those same principles. They are referred to in the remitted hearing in Dalgliesh. See, for instance, cases of Sposito,[25] Talbot, [26] KHB.[27]
[25](Unreported, Supreme Court of Victoria Court of Appeal, Marks, Hampel and McDonald JJA, 8 June 1993)
[26]Talbot v R [2016] VSCA 218
[27]R v KHB [2004] VSCA 219
The Dalgliesh decisions of our Court of Appeal provide the clearest pronouncements as to the seriousness of the crime of incest. The Court of Appeal spelt out in detail the seriousness of the offence and the reasons for that. The first Dalgliesh decision dealt with the misconception that the courts had seemingly been invited to accept as to crimes of incest not really being crimes of violence. The Court of Appeal stated that sexual penetration of a child is, by its very nature, an act of violence.
The Court of Appeal concluded that current sentencing practice did not reflect the objective gravity of the offending or the moral culpability of the offender. The court spoke of the recurring themes in cases involving an offender with ongoing parental responsibilities towards a child under the age of 18, the recurrent features being extreme invasion of the victim's person, exploitation of a vulnerable child, violation of societal norms, long-term and severe impact, serious breaches of trust and the undermining of familial roots of society. These features are common in incest occurring across the range of seriousness, but the Court of Appeal went on to say that the factors distinguishing worst-case offending from mid-range offending was the nature and the extent of the offending conduct, its frequency and duration and the circumstances in which it occurs. The High Court in their Dalgliesh decision discussed the ramifications of worst-case offending in terms of maximum penalty.
The Court of Appeal in the original Dalgliesh decision concluded that the sentences imposed in the past devalued the objective gravity of the offence as informed by the egregious breaches of trust and the important consequences for victims. The
Court of Appeal did not intervene in that particular case owing to the need to pay regard to current sentencing practice and the restraints said to arise from that requirement. The High Court corrected that decision, remitted it back to the
Court of Appeal which then significantly increased the sentences. Pre-Dalgliesh sentences are of very little weight indeed.So too statistics which predate those decisions.
There have also been strong statements in many cases since those, including
Trangle[28] and Boxer[29].
[28]Trangle (a pseudonym) v R [2021] VSCA 210
[29]Boxer (a pseudonym) v R [2021] VSCA 300
Quite aside from the change to sentencing practices brought about by Dalgliesh, one always has to be very careful looking at other cases. Every case is to be dealt with on its own facts. Some cases involve a single isolated act, some involve a representative charge, some involve multiple victims. Some involve a course of conduct offence where the offender falls to be sentenced in a manner to reflect the totality of the offending constituting the course of conduct. I am dealing with one act and one attempt occurring in the same episode but committed amidst a broader setting of other sexual abuse, both charged and uncharged.
The fact is there are always differing aggravating and mitigatory considerations, differing durations, differing impacts, differing ages of offenders and of victims, differing acts. No two cases are ever the same.
No amount of looking at statistics or other sentencing outcomes in other cases would ever provide the answer to the correct exercise of my discretion in your case. Each case is very different, so too every offender, so too every victim, and what I must do is exercise my sentencing discretion in your case. Plainly, one serious aspect of this incest offence and the attempt is the age of the child. Stacy was a little girl. She was seven at most. She was not threatened but was told to keep the offending secret. I am satisfied beyond reasonable doubt also that the conduct occurred in the bedroom as her younger brother played with some toys on the floor. I don’t mention that to suggest he was in any way a victim or even a witness to the conduct. It relates to Stacy’s predicament at the time of the offending the subject of Charges 4, 5, the incest Charge 6, and the alternative charge of attempted incest and Charge 8 for that matter. It took place with her brother in the room and she knew that fact.
The impact here has been profound. Of course, you do not fall to be sentenced on a course of conduct or even a representative basis. Nor am I passing sentence upon you for that uncharged conduct.
In the case of the indecent acts, again statistical material is of little value. As I mentioned, unlike incest, where the breach of trust is inbuilt into the offence, indecent act has no such inbuilt factor at all. It can be committed without any breach of trust at all. Here, of course, there was a serious breach of trust, and that is a serious feature of aggravation in relation to those offences. The victim was your daughter offended against in her home, a place where she should have been safe, and offended against by a person who had a positive duty to ensure her safety and who did otherwise. She was, at most, seven years of age.
The term 'current sentencing practices' refers to those in effect at the time of sentencing, not those which existed at the time an offence was committed.
Whilst sentencing practices at the time of the offending are not 'current sentencing practices' for the purpose of the Sentencing Act, equal justice may require a court to consider historical sentencing practices so far as they can be established, and if they demonstrate that a materially lesser sanction must have been imposed for a like offence than current sentencing practices would impose.

It is however no part of my function to ignore the recent clear case law as to the seriousness of the crime of incest and the strong need for an increase in sentencing. It is no part of my function as a judge to pass an inadequate or inappropriate sentence reflecting what were clearly past inadequate sentencing practices. This is not a case where there was a lower maximum penalty existing at the time of the offending. If that was so, I would be required to take that into account. That is not the position.
I have also looked at relevant cases listed in the sections of the
Judicial College of Victoria Sentencing Manual for incest (3.3.1 & 2) and also
indecent act (3.4.3.1 & 2).
As I have said, I have to take into account the maximum penalties. These are crimes where the penalty has not altered. They were viewed as seriously then by the
Parliament as they are now. You do not fall to be sentenced under the
Standard Sentencing Scheme which came into play for offences committed after
1 February 2018. That scheme has no role to play in my task. The 10 year standard sentence for incest has no role to play in this task.
I have mentioned statistics and already said something about the inherent difficulties with them. Whatever might be said of them, they tell me nothing about the finer detail of those crimes represented in the data. Nothing about the matters in mitigation. Nothing about the matters in aggravation. Many of the cases upon which the statistics are based would have been guilty pleas and many would have pre-dated Dalgliesh, as I have already said. Many of the cases I have looked at involved guilty pleas and one where there was a finding of remorse. That is worth a great deal in all cases, but more so still in cases involving sexual assaults. Those things do not exist here. It was your right to run a trial but, having done so, you do not have at your disposal the very sizeable benefits of a guilty plea, especially one made in the course of the global pandemic and one accompanied by actual remorse. There is no remorse here.
At the end of the day, I must deal with you for your crimes, taking into account the matters in mitigation and aggravation in your case. There is no such thing as one correct sentence either.
The statistics provide no answer to my task at all, nor, for that matter, those other cases I have looked at. I was referred to the case of Boxer. [30] I must say it is strange to see an argument before the Court of Appeal based in such large part on the statistical material. I had thought we had got beyond that unfortunate phase. In that case, reference was made by the applicant before the Court of Appeal to the very snapshot I have mentioned, Snapshot No. 242, and the fact that only one offender out of 109 received a sentence of greater than 10 years. Hence the argument before the Court of Appeal was that the sentences imposed in that case were significantly above the median or mean. An argument drawing some strength from the ‘claim’ that the result was a statistical ‘outlier’ whilst not really grappling sensibly with the Dalgliesh increase that had not been reflected in the snapshot given the date of the data upon which that snapshot had been compiled, an issue which as I have said, is actually mentioned in the endnote to that document.
[30]Boxer (a pseudonym) v R [2021] VSCA 300 (“Boxer”)
Indeed, the more up to date online statistics available to me would have put paid to that description “outlier” as by that time, by 30 June 2020, there was already a much higher frequency of sentences above 10 years for both the repealed offence under s44 which is what I am dealing with, and the current offence under s50C, the sort of increases which would not have been reflected in that more dated snapshot but which really were quite inevitable given the decision in Dalgliesh. I assume they must not have been made available to the Court of Appeal in that case of Boxer.
The fact is whether a sentence is over or under the median or the mean, says nothing at all about whether the sentence is appropriate or not. Nothing. Those terms are statistical terms. I am passing sentence as a judge, not a statistician.
Incidentally, the fact that there had been only one case out of 109 with a sentence of greater than 10 years might surely raise questions about the adequacy of sentencing practice and the continued devaluing by the courts of the seriousness of the crime of incest. The very things spelt out so forcefully in Dalgliesh, which had also considered in great detail past cases and the statistics and what they disclosed which was a lack of sentences above a certain band which simply could not be right as a matter of law.
The crime is punishable by a maximum sentence of 25 years imprisonment. There have been horrendous examples of it which seemingly have not been adequately punished, no doubt an error in approach driven in the past by this unhealthy reliance on current sentencing practice and this style of statistical analysis deployed either at first instance or on appeal. It is clear from the Dalgliesh line of cases that we had somehow got to the point in this State where inadequate past sentencing practices themselves operated as an unwarranted constraint on sentencing. That the significance of ‘current sentencing practices’ had for whatever reason, been elevated to the point where they had become determinative of sentence, operating in a way they ought not, almost as an arithmetic fetter upon the exercise of the sentencing discretion.
Current sentencing practice is not a controlling factor and past sentencing practices were plainly wrong and seriously wrong. So much is plain from this line of authority. Nor am I particularly impressed with the frequent submissions we have placed before us on pleas in mitigation before this court as to the absence of particular identified features of aggravation and then the seemingly obligatory never ending trawling through other cases and comparing and contrasting one case with another, one offender with another, one crime with another, one sentence with another. To his credit, Mr Thyssen did not engage in that process, though he referred me to Boxer which surveyed a number of cases.
The fact is one can probably always construct a more serious example of a crime. Crimes have differing aggravating features. One can almost always envisage a worse case of any crime, including crimes of incest or indecent act. That is not the best way to judge the seriousness of the actual crimes before the Court. The absence of some aggravating features says very little indeed about the seriousness of the actual offence before the Court, especially where the crimes before the court have their own aggravating features present, as these crimes plainly do. See the case of
Harlow[31]. It is all something of a distraction from my real task.
[31]Harlow v The Queen [2017] VSCA 234
Viewed objectively, this was plainly serious offending. I do not suggest that the incest falls at the very highest level but it still represents a serious enough example of the offence for the reasons I have announced. It is certainly not a low-level example of the offence.
My sentencing task follows on from a trial, so as I have said, my task does not have some of the powerful mitigatory factors that often enough exist in a different setting.
Totality
I take into account the principle of totality of sentence and I have engaged in a last look at the sentences imposed by the court and the total effect of them in endeavouring to guard against the imposition of a crushing sentence upon you and to ensure that the overall effect is commensurate with your overall criminality. In that regard I pay regard to the fact of the earlier sentence and your being continuously in custody since February 2020.
I have the serious offender provisions of the Sentencing Act which come into play for every sentence I am about to impose. The ramifications are that I may impose a disproportionate sentence to achieve that goal, pursuant to s6D(b). I certainly will not be doing that in this case.
I am required by those provisions to treat the protection of the community as the principal purpose of sentencing. I cannot ignore that provision.
In the absence of a direction otherwise, the sentences imposed would be served cumulatively upon each other and upon your existing sentence as the presumption of concurrency is deliberately removed. Totality, though modified, is still an important consideration here. I do not ignore those serious sexual offender provisions but what sentence is required to protect the community will necessarily depend upon my assessment of the risks that you present. (see R v RNT[32]).
[32][2009] VSCA 137 at [16]
Plainly, there is a strong relationship between the four acts embraced by
Charges 5, 6, the alternative to Charge 7 and Charge 8. They occurred in the ‘teddy bear pyjama incident’, so they are part of that episode. That is not to say that they are deserving of complete concurrency. Plainly they are not. They were each serious separate criminal acts, no doubt each having a role to play in the overall impact caused here. Charge 6, the incest, was a serious crime indeed. Incest in having your child penetrate you. The alternative to Charge 7 was also unmistakably serious involving attempted anal penetration of your daughter. You actually hurt her. She can recall the pain she felt at the time. I do accept that there can be a level of concurrency in relation to those matters and those other two charged acts in that episode.
There is no temporal or episodic relationship between those charges and
Charge 1, or 3 or 4. They all occurred on different occasions from that incident and from each other. So I have 4 different episodes of offending.
Sending a person to prison is always a disposition of last resort. Your counsel conceded the need for condign punishment. He was right to make that concession. He conceded that I must impose terms of imprisonment, with some level of cumulation and arrive at a substantial head sentence and then fix a non-parole period. Also, to make judgments as to the extent of cumulation with your existing sentence.
He argued for some mercy given your damaged status.
Sentence
I move now then to pass sentence.
I am going to sentence on Charge 6 first as that will be the highest sentence imposed by the court and that is the charge of incest. I will ask, but with no expectation of compliance, would you please stand, Mr Walsh? No, all right, you will not.
·     On Charge 6, incest, I convict and sentence you to ten years imprisonment.
·
I now move back to Charge 1. On Charge 1, I convict and sentence you to
three and a half years imprisonment.
·     On Charge 3, you are convicted and sentenced to two and a half years imprisonment.
·     On Charge 4, I convict and sentence you to two and a half years imprisonment as well.
·     On charge 5, I convict and sentence you to two and a half years imprisonment.
·     On the alternative to Charge 7, so this is the charge of attempted incest, I convict and sentence you to seven years imprisonment.
·
On the final charge of indecent act, I convict and sentence you to
three and a half years imprisonment.
The base sentence is therefore the ten years imposed on Charge 6.
Extent to which I otherwise direct concurrency (s6E)
I now have to set out the extent to which I otherwise direct concurrency under the provisions of s.6E of the Sentencing Act. I direct that
·     Two years and 10 months of the sentence imposed on Charge 1;
·     Two years of the sentence imposed on Charge 3;
·     Two years of the sentence imposed on Charge 4;
·     28 months of the sentence imposed on Charge 5;
·
Five years and four months of the sentence imposed on the alternative to
Charge 7; and
·     Three years and four months of the sentence imposed on Charge 8;
are be served concurrently upon the base sentence and the other part concurrent sentences.
It follows that under s6E, I otherwise direct concurrency to that extent. It is my intention then that there be that additional 44 months cumulation on top of the existing
ten years base sentence imposed on Charge 6.
Total Effective Sentence
This results in a total effective sentence of thirteen years and eight months imprisonment.
Non-Parole Period
I direct that you serve a period of ten years before becoming eligible for release on parole.
In the circumstances, I have decided to order that this sentence be served concurrently upon your existing sentence. This in further recognition of the principle of totality and in recognition of the fact that the matters I am dealing with would surely have had a role in your not being able to apply for parole once you reached the end of the non-parole period Judge Hampel fixed in late 2020. No doubt had you been in a fit state and had COVID not intruded, Her Honour would then have moved ahead with the second trial, and awaited the verdict in that matter and then gone on to sentence you on one occasion for all the offending and then made orders for cumulation and fixed a single non-parole period. That then became impossible, so she had no choice then but to sentence you on those other matters. You have been continuously in custody since February 2020 and I must have regard to that fact.
Section 18 - Pre-Sentence Detention
You have spent no time in custody in relation to this matter as you have been undergoing that other sentence of imprisonment so there is no s18 declaration.
Serious Sexual Offender
I have sentenced you as a serious sexual offender on Charges 1, 3, 4, 5, 6, the alternative to Charge 7 and on Charge 8 and that fact is also to be noted in the records of the court.
Sex Offender Registration
You have been sentenced by me in relation to two Class 1 offences and five class 2 offences under the Sex Offender Registration Act2004. It is agreed that this triggers an obligation to report under the Sex Offenders Registration Act. Previously your obligation was to report for 15 years upon your release from custody.
That of course has now changed. Upon your release from custody, you must comply with your reporting and other obligations under that Act for the rest of your life.
Mr Walsh, I have to advise you about the nature of your obligations under the
Sex Offenders Registration Act
in the sense of providing a document to you. Had you not misbehaved you would be physically in court and I would have had your counsel come down and speak to you in the circumstances and explain what it is I was asking you to do which is simply to sign an acknowledgement of the fact that you have received the details of your obligations. Let me just consider how I deal with this. As I say, you will need to comply with your report and other obligations under that Act for the rest of your life.
Ms Flocke, I do not see much value in connecting the link again, at least in terms of unmuting your client. He is in Court 2 as I understand it. Would you want to speak to him about this. All I want him to do is to sign the acknowledgement. If he does not, he does not and his refusal is then witnessed by my associate. It makes no difference in terms of his obligations, but normally people sign these documents and acknowledge that they have received their notification of their reporting obligations. What do you suggest I do?
MS FLOCKE: I am happy to make my way to Court 2, Your Honour, to facilitate that.
HIS HONOUR: Yes. Just so he understands. I mean look, if he doesn't sign it, he doesn't sign it. But I am not taking him off mute. So just so he understand what I am asking him to do, it is a very lengthy document. I will sign it and indeed I have already signed it and all I am doing is having it provided for him to sign to acknowledge that he has received those explanations of his responsibilities under that Act. He has had this sort of document before
As you will know, the Act imposes a number of conditions upon him. They are serious matters and they include impediments to future employment in a number of areas. Impediments to his future contact with children and the need to report any contact in a timely fashion and he will need to familiarise himself again with those matters as any breach of the Act or his obligations under that Act is a very serious criminal offence punishable by a term of imprisonment.
So all I am really doing by sending you into that court, which I will do in a moment, is providing him notification of his reporting obligations. It's a lengthy document. No-one could ever sit in court and read it from start to finish. That is not the purpose of this. He is being asked to simply acknowledge by his signature to receive that notice under that Act and that is what I will be asking him to sign. If he chooses not to, then that is no problem, I will simply have my associate note that he has refused to sign the terms of the acknowledge. But I will ask him to sign it. I will at least extend that opportunity to him.
I am not suggesting you get into a squabble with him. It is a simple business, sign it or not is what it amounts to. So we will remain silent here and you just go across to Court 2. We will not say anything in your absence. All right.

MS FLOCKE: Thank you, Your Honour.

(Ms Flocke went to Court 2 with no success)

HIS HONOUR: Come back then. I will treat that as a refusal. Don't waste any more time doing that. You are on mute, Mr Walsh. It didn't look that successful from what I could see on the footage. Did he rip up the forms, did he? We will print out another version, I will sign them and he's on notice in terms of his obligations under that Act. Yes, all right.

MS FLOCKE: Thank you.

HIS HONOUR: Thanks for making the effort at least, Ms Flocke. Let me just see if there's anything else I need to deal with. Are there any other matters then from either of you?

MR MOORE: No, Your Honour.

HIS HONOUR: Nothing from you, Ms Flocke?

MS FLOCKE: No, Your Honour.

HIS HONOUR: Look, you will no doubt have to discuss what's taken place and your client's rights in relation to all this but you will make arrangements to do that in due course obviously.

MS FLOCKE: Yes, Your Honour.

HIS HONOUR: That completes the matter then. Disconnect the link to
Mr Walsh, thank you.

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[2022] VCC 737

20 May 2022