Director of Public Prosecutions v Walsh (a pseudonym)
[2017] VCC 1281
•6 September 2017 (at Melbourne)
| IN THE COUNTY COURT OF VICTORIA AT WANGARATTA CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Max Walsh (A Pseudonym) |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Wangaratta | |
DATE OF PLEA HEARING: | 16 May 2017 (at Wangaratta) and 28 August 2017 (at Melbourne) | |
DATE OF SENTENCE: | 6 September 2017 (at Melbourne) | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Walsh (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1281 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – one charge of incest (step-parent) (a representative charge) – two charges of indecent assault (both representative charges) and one charge of common assault – early plea to charges – voluntary disclosure of crimes – prospects of rehabilitation – absence of other convictions and good character – whether application of “Doran’s Discount”
Legislation Cited: Crimes Act 1958, s44(1), s52; Crimes (Sexual Offences) Act 1980; Sentencing Act 1991
Cases Cited:R v AWF [2000] VSCA 172; R v Doran [2005] VSCA 271; Ryan v R (2001] 206 CLR 267; Director of Public Prosecutions v Stewart [2003] VSCA 197; R v MKG [2006] VSCA 131; Beyer v R [2011] VSCA 15; Director of Public Prosecutions v EB [2008] VSCA 127; DPC v The Queen [2011] VSCA 395; DP v the Queen [2011] VSC 1; R v CJK [2009] VSCA 58; R v RGG [2008] VSCA 94; Reid [2014] VSCA 145; Reid (a Pseudonym) v The Queen [2014] VSCA 145; Stalio v R [2012] VSCA 120; Curypko v R [2014] VSCA 192; DPP v Dalgliesh [2016] VSCA 148; Phillips v The Queen [2012] VSCA 140; Younan v R [2017] VSCA 12; JBM v R [2013] VSCA 69; Gordon v R [2013] VSCA 343; RH McL v R (2000) 203 CLR 452; R v Verdins & Ors (2007) 16 VR 269
Sentence: Total effective sentence of 5 years imprisonment with a non-parole period of 2 years and 10 months imprisonment; Sex Offender Registration for life; 6AAA declaration – 7 years imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D Hannan | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr T S Lynch | Brian Birrell |
HIS HONOUR:
1 Max Walsh[1], you have pleaded guilty to the following offences:
[1] This is a pseudonym.
Charge 1 – that you, at a town in Victoria, between 1 August 1983 and 31 December 1985, indecently assaulted Elizabeth Payne[2], a person under the age of sixteen years.
[2] This is a pseudonym.
Particulars – you penetrated the vagina of Elizabeth Payne with your finger.
This is a representative charge.
The offence of indecent assault is contrary to s44(1) of the Crimes Act 1958 (Vic) as amended by the Crimes (Sexual Offences) Act 1980 and at the date of offending, carried a maximum penalty of five years’ imprisonment.
Charge 2 – that you, at a town in Victoria, between 1 August 1983 and 31 December 1985, took part in an act of sexual penetration with Elizabeth Payne, a person who was above the age of ten years, whom you knew to be your stepchild, in that you introduced your penis into the vagina of Elizabeth Payne.
This is a representative charge.
The offence of incest (step-parent) is contrary to s52 of the Crimes Act 1958 (Vic) as amended by the Crimes (Sexual Offences) Act 1980 and at that date of your offending, carried a maximum penalty of twenty years’ imprisonment.
Charge 3 – that you, at a town in Victoria between, 1 August 1983 and 31 December 1985, indecently assaulted Elizabeth Payne, a person under the age of sixteen years.
Particulars – you penetrated the vagina of Elizabeth Payne with your tongue.
This is a representative charge.
The offence of indecent assault is contrary to s44(1) of the Crimes Act 1958 (Vic) as amended by the Crimes (Sexual Offences) Act 1980 and at the date of offending, carried a maximum penalty of five years’ imprisonment.
Charge 4 – that you, at a town in Victoria, between 1 August 1983 and 31 December 1985, assaulted Elizabeth Payne. The offence of common assault is contrary to the common law and carries a maximum penalty of three months’ imprisonment.
2 The penalties in respect of incest and indecent assault have increased since the date of the offending, but the law provides that the maximum penalty applicable is that at the time of your offending.
Details of your offending
3 Counsel for the Prosecution tendered a “Summary of Prosecution Opening” (Exhibit 1) which sets out the circumstances surrounding your offending. Such summary has been accepted by you and your counsel as an appropriate representation of such offending. The important matters of such summary are:
(a)You are sixty-nine years of age and at the time of offending, you were between the ages of thirty-four and thirty-eight and married to the mother of the complainant;
(b)Elizabeth Payne is the complainant and she is presently forty-five years of age (born in May 1972). At the time of the offending, the complainant was aged between eleven and thirteen;
(c)Elizabeth Payne was the daughter of Dorothy and Walt Brigham[3] and grew up in the Glen Waverley area with two siblings: an elder brother, and a younger sister. In the mid-1970s, the complainant was living with her parents and siblings on a worksite in Glen Waverley, where her father was assistant manager and you worked as a security guard;
[3] These are both pseudonyms.
(d)The relationship between the parents of the complainant ended, after which Dorothy Brigham – the mother of the complainant – took the complainant, Elizabeth, together with her two siblings, and moved to another address in Glen Waverley. During this time, Dorothy formed a relationship with you and you ended up moving into this house with the family in approximately 1980;
(d)At that time, you owned a property situated at a small rural town which you used for farming purposes. Over the next two to three years, you would travel up to that property regularly and take the complainant and her siblings to the property on weekends and holidays on a regular basis;
(e)You married Dorothy Brigham on 11 October 1982 and shortly after, you and Dorothy had a child –born in October 1982;
(f)In August 1983, the “family” relocated permanently, which, at the time, had a shed which had been converted into a house. The complainant shared a bedroom with her younger sister, and her step-brother had his own room, with you and Dorothy and the other brother, sleeping in a caravan attached to the house;
(g)From the time you moved into the family home in Glen Waverly, you formed a close relationship with the complainant and treated her favourably compared to the other children. You would sit next to each other on the couch when you would rub her back and neck whilst giving her cuddles;
(h)When living in the rural town, you were employed as a dairyman and farm hand at two dairies in the Buxton area.
The first charge
(i)Charge 1, which is a representative charge, relates to events when the complainant was aged between eleven and thirteen. When the complainant’s mother was at work and her siblings were in bed asleep, the complainant sometimes slept in your bed. When you were also on the bed, you started rubbing the complainant on her back, before moving your hands down to her vagina. She describes you regularly using your hand and fingers to stimulate her on her vagina. Sometimes this was done on the outside of her clothing, and sometimes it was skin-to-skin. You also rubbed the complainant’s clitoris with your fingers, before inserting your fingers into the vagina of the complainant;
(j)You would also regularly touch the complainant’s vagina while you were sitting on a couch, and the complainant would often be sitting on your knee, or sitting next to you on the couch;
(k)Sometimes your actions in stimulating the clitoris of the complainant brought her to orgasm and you would occasionally rub your penis against the complainant when performing these actions, or rub your penis against an object if it was not an imposition to rub the complainant that way. Over that time, your stimulation by hand and finger slowly decreased where, to the point you more regularly, if not solely, performed oral sex on the complainant;
Charge 2
(l)Charge 2, which is a representative charge, involves events following your activities relevant to Charge 1. You would roll the complainant onto her back, pulling her legs apart, and then lay on top of her, after which you inserted your penis into her vagina, causing her to cry. You moved your penis in and out of the complainant’s vagina for a period of time, causing her stinging and pain, after which you withdrew your penis and lay beside the complainant, and started rubbing her back again. Again, you would insert fingers into her vagina;
(m)Charge 2 represents the many times that you had sexual intercourse with the complainant. The complainant describes sexual abuse happening “pretty much every time I went milking with Max”, as she would accompany you to one of the farms to milk cows. In particular, you would arrange for the complainant to get off the school bus instead of returning home, so that you could pick her up. And, in particular, the complainant recalls you being on top of her in the vat room, having sex with her a number of times;
(n)The complainant recalls that on one occasion, before puberty, she observed blood in her underwear when she returned home, and this blood was caused by you having sexual intercourse with her. The complainant also recalls a pattern of you performing oral sex on her before intercourse to help with lubrication, as often she would be in pain during intercourse and be whimpering or crying. The complainant recalls one occasion of sexual intercourse happening at home;
Charge 3
(o)Charge 3, which is a representative charge, and represents the many times that you performed oral sex on the complainant between the ages of eleven and thirteen, following the activities the subject of Charge 1 and Charge 2. Following such activities, you would get up and place your head between the legs of the complainant and use your tongue to lick her vagina, again, while inserting your fingers into her vagina;
(p)In particular, you would regularly lick the complainant’s vagina, typically in the car to, or from, the farm to home. You would typically stop the car close to home, lay the complainant’s seat back and perform oral sex on her until she orgasmed. This became such a regular occurrence, often weekly, but more often daily, and you have described it as happening whenever the complainant required orgasm “and if she felt the need to have one on a daily basis, or whenever, I was more than happy to oblige” (see Record of Interview dated 22 June 2015, Question 74 and answer thereto).
Charge 4
(q)Towards the end of 1985, when the complainant was twelve or thirteen, she attended a party with her brother. During the party she consumed alcohol and had to be collected from the party, and the following evening she was sitting at the dinner table when you raised the issue of her actions the night before and demanded an apology. When the complainant did not give an apology, you threatened to beat her with a piece of poly pipe that you had with you;
(r)The complainant refused to apologise, and you stood up and leaned over the table, struck the complainant on the arms and back, causing her to start running through the house to get away, with you continually beating her with the poly pipe, which had a brass hose attached to it. Although one of her brothers attempted to shield the complainant from your beating, you continued to beat the complainant, also striking her brother in the process. Finally, her brother managed to get the complainant out of the house, where she fell on the ground, covering herself up. Her brother helped the complainant up, at which time she was crying, and she had a substantial amount of welts or raised bruises all over her back, arms, and back of her legs. These circumstances are the basis of Charge 4 – that is, the common assault.
Investigation
4 On 8 May 2015, the complainant and her husband, together with other members of her family, attended a wedding in Brighton. After the reception, the complainant told her younger sister some details about your sexual abuse, during which time she was very distraught. Over the next few weeks, members of the family were encouraging the complainant to report the abuse to the police and ultimately, you became aware of the disclosure and visited the complainant, asking if there was “a problem”.
5 You met with the complainant a few more times and you offered “help” and offered to hand yourself into the police. You eventually attended the Lilydale Police Station on 22 June 2015 and admitted some of the offending. A detailed statement was then taken from the complainant before a more detailed interview was conducted with you on 3 February 2016.
6 During your first recorded interview, you relevantly stated:
(a)Q/A18: Your relationship “led to a period of time in which it developed into sexual attraction”;
(b)Q/A92-95: You stated, “My relationship with Elizabeth has never been one of intercourse” and “we never indulged in sexual intercourse”;
(c)Q/A105-106: You stated that the relationship evolved over time where it became a sexual relationship and you noted, “probably patting and caressing and all that probably delivered the goods”. Then it moved onto “probably where I would have physical contact with my hands”;
(d)Q/A109-111: You stated, “Well when she went through that period between Grade 6 and going to high school, obviously what was happening between us, I would say her sexuality was developing. And I think she needed a fair bit more stimulation”;
(e)Q/A124-126: You stated, “If I ever felt that Elizabeth was uncomfortable with anything – what it was basically boiled down to is I went out of my way to do what I could to please her. If I pleased her, I was more than happy to oblige … I got the joy of seeing her enjoy the moment”;
(f)Q/A134: You stated, “It was a progressional thing. So I think for when I look at it in retrospect, Elizabeth was probably having orgasms well before I actually realised what was going on. So in the early days she always liked to have [her] back rubbed … and then as her sexuality developed it would sometimes come down to a more direct form of contact”.
7 During your second recorded interview, you relevantly stated:
(a)Q/A215-218, 225: You stated that you would have performed oral sex on the victim on a minimum of fifty separate occasions;
(b)Q/A570: You stated that the complainant was the one who instigated the oral sex by taking off her clothes and laying in front of you on the floor in the lounge room after your typical rubbing action was not having the desired effect;
(c)Q/A617-623: You stated that the offending also occurred at the dairy where you were working on a number of occasions;
(d)Q/A627: You stated, “I never myself at any time sought sexual satisfaction. I – on all of those occasions, I would never remove my clothes. It was purely a matter of – Elizabeth obviously had a choice at that stage. If – before we – if she wanted to have an orgasm as such like that, we had to have it before we got home”;
(e)Q/A646: You stated, “I didn’t need sexual satisfaction with Elizabeth. That wasn’t – that wasn’t the objective”;
(f)Q/A666: You stated, “The main source of pleasure came from me because Elizabeth had had the orgasm. But I – yeah I’m male. I’m like everybody else”;
(g)Q/A679: You stated, “I knew she was attracted to boys her own age. And I realised that I probably fulfilled my need as far as that part of our relationship. And I was more than happy for Elizabeth to move onto the next phase of her development”;
(h)Q/A680: You stated, “One of the reasons why we’ve always had such a good relationship is because I have never tried to own Elizabeth and I’ve never tried to control her. And so everything she’s ever asked me, I’ve obliged”;
(i)Q/A798-807: When an allegation of sexual intercourse was put to you, you stated that it had occurred on one occasion “but it wasn’t me who instigated that”. You repeated this assertion that “sexual intercourse was not something I wished to pursue” and that you “[were] a very reluctant party to it”;
(j)Q/A803: You stated, “I’d like it on the record that at no stage in my relationship with Elizabeth over the years have Elizabeth or I ever had what I would call a good – however you wanna put it – screw, bang, fuck or whatever. Elizabeth and I have never encompassed that between us. Never.”
Victim Impact Statements
8 The Prosecution tendered the following Victim Impact Statements:
(a)The statement of the sister of the complainant declared on 11 April 2017 (see exhibit 2). She gave evidence and read her statement to the Court;
(b)The statement of the complainant declared on 2 May 2017 (see exhibit 3).
9 In her statement read to the Court, the sister of the complainant describes how she was left “reeling” when told by the complainant of the sexual abuse suffered by her when a child. In particular, she describes feeling a whole range of emotions, including anger, disgust, disgrace, helplessness, hatred, but mostly disappointment and sadness. She notes that when growing up, the complainant was considered by she and her siblings to be the favourite of you, whereas she considered that the complainant must have been “shrivelling on the inside and wondering why being the favourite felt so wrong”.
10 She recalls how the complainant became obviously rebellious and started drinking and smoking from a young age and how she got into trouble with her mother and, to some extent, her stepfather. Furthermore, she noted how the complainant dropped out of university when studying nursing, experimented with drugs and got into the wrong crowd. The complainant had a baby when she was twenty-one but the relationship with the father disintegrated, causing the plaintiff to move home with the baby, where she did not cope, was angry, desperate and depressed.
11 The sister of the complainant notes that she herself sought counselling over a period of approximately six months, not only to sort out her own feelings but how best to support the complainant and “navigate the messed up situation”. She described that the revelations changed the shape of the family and that you are no longer welcome in any part of their lives. She comments that because her father had died some time ago, you were essentially the only father figure she knew and everything that you stood for has been ruined and she has lost all feelings of trust, respect and hope for you, with nothing remaining but hurt and disappointment.
12 In particular, she states:
“My knowledge of this crime has profoundly affected me, my husband, my siblings, their partners, our children, but above all Elizabeth. We have been forced to discuss topics so abhorrent that it makes me feel physically ill. We knew we had a few skeletons, not unlike any family, but not this, this was too much to bear. We have had to make decisions about how we move forward with this grim knowledge. The accused is unpredictable in behaviour and reaction and we have had real concerns for our safety; blocking calls, locking doors, sleepless nights and looking over our shoulders. For months it was difficult to concentrate and focus, sleep didn’t come easily and eating seemed unappealing, it was all consuming, it has been like an endless grieving cycle.”
13 In her statement, the complainant, notes that your actions have had an enormous impact on her life and definitely shaped her into the person she is today. She comments that very early in life, she learnt how to suppress her real feelings and emotions and that guilt, shame, betrayal and fear seemed to override anything else but soon became a feeling of total numbness. In particular, she states:
“I lacked self-confidence, I felt dirty, sad, angry, unloved and very lost. I trusted no one to tell my story to and even if I had told, I certainly did not expect anyone to believe me.
As a child I had no idea what to do with these feelings, I just knew I had to survive each day. This became harder to do as I got older. I began to pray every day that someone would save me from this nightmare. I lost faith in everything and everyone. It soon became evident to me that I was never going to be saved. I felt like the secrecy and loneliness was slowly killing me. I feared death, I feared him, I feared everything. I felt my walls closing in on me. My innocent childhood was no longer that, it was instead turning into a deep, dark, frightening hole that l no longer wanted to exist in. Nights were long as my sleep became less. I was always anxious and scared of what tomorrow would bring.”
14 The complainant also notes that she hated her siblings because they believed that she was the favourite child, but also hated the thought of this happening to any of them. She also notes that as a teenager, she became very rebellious and started to experiment in drugs and alcohol and that being drunk or “high” helped her to escape the reality of the moment.
15 The complainant notes that trust was a major issue for her and that she trusted no-one – men in particular. Over the years, she pushed people away as soon as they got too close, in fear of finding out the truth about her. Relationships were short-lived and close friends were almost non-existent. Her life was extremely lonely.
16 Her relationship with her mother became full of rage rather than love, as she despised her mother for not saving her, or not knowing.
17 On leaving home at the age of seventeen, she sought counselling, which turned out to brief, as they encouraged her to go to the police with her story which she could not yet face as an option. She dropped out of university after eighteen months in nursing and continued to lack self-confidence and continued on a self-destructive path.
18 In particular, she states:
“Today as I sit here, knowing all of this is out in the open, I have a whole lot of confused emotions. I have old emotions re-surfacing that I thought l had faced and overcome, in my case I have found that time does not heal all wounds. I feel like I am that scared little girl again taking a ride on the rollercoaster from hell that never stops. I feel terrible for inflicting this pain and shock on my family. The reality of my childhood is now apparent to them and I can only imagine the feelings they are going through. I feel ever so guilty for not telling them sooner. I feel like I have betrayed them.
I feel sad and very responsible that our children will no longer have a grandfather in their lives. I once again feel filthy dirty, ashamed, lost and helpless. I want to make it all better for everyone but am unsure how to. I am hoping that this is the first step in recovery for all involved. Our family dynamic has definitely changed forever.”
19 The complainant, in her statement, also particularly referred to the circumstances immediately following the assault inflicted by you – relevant to Charge 4. She states, in particular:
“The day I endured that horrific flogging I will never forget. I was chased like a wild animal and beaten with poly pipe over and over. The first whipping dropped me to the ground which is where I stayed while the beating continued. I screamed in pain to no avail. I thought it was never going to end. My brothers watched on in horror begging for him to stop. Once it was over they picked my sobbing, limp body up off the ground. They hugged me and cried with me in pure disbelief at what had just happened. I had more than thirteen welts and bruises all over my body that lasted for days. I was black and blue. I was broken. The physical pain l suffered that day still did not compare to the mental and physical abuse I had been going through. It did not stop me continuing my rebel way of life, in fact it made me worse. I had so much rage inside of me. I felt so worthless, angry, sad, and so full of rage that I ached from the inside out. Nothing mattered anymore.”
20 The complainant also describes how she has been seeking more counselling now and has recently been diagnosed with Anxiety and Depression which she believes she has suffered for many years but has left it untreated up until the present. Since she informed her family of the earlier sexual abuse, she has had significant hair loss, leaving a bald spot on her head of which she is extremely self-conscious. She also has skin conditions when she becomes nervous or anxious and her sleep patterns have become interrupted, causing her to wake several times every night, quite often with nightmares.
Your personal, educational and vocational background
21 You will recall that your counsel tendered the following documents:
(a) Outline of defence submission (exhibit “A”);
(b)Report of the clinical psychologist, Ms Carla Lechner, dated 30 April 2017 (“exhibit B”). Ms Lechner also gave evidence confirming her report.
22 Your employer for the last eighteen years, also gave evidence on your behalf. In particular, evidence was given that you had been employed by him for some eighteen years, mainly as a truck driver, delivering to Melbourne and interstate. In particular, he described you as someone who had an excellent “work ethic” and “as an honourable and honest” person. Furthermore, he gave evidence that over the years, there was “nothing whatsoever” pointing to the type of behaviour which is the subject of the various charges.
23 Based on the contents of the documents tendered on your behalf, together with the submissions of your counsel, I note the following in relation to your general background:
·You are now sixty-nine years of age, having been born in March 1948. You were one of four children. Your parents were together for thirty years, after which your father had a second wife. You presently have an elder sister aged seventy years, and a younger brother, aged sixty-seven years. Another younger brother committed suicide approximately thirty years ago.
·You grew up on a Fisheries Department Research Farm, where there were twelve other families living in a small community. You attended Primary School from Prep to Grade 2 and, thereafter another Primary School to the completion of Grade 6. You then attended High School until Year 10, describing your academic ability as “average”, and that you struggled to reach “[your] potential”. You completed Years 11 and 12 at Heidelberg High School after moving to that area to live with your mother and grandmother (after you parents’ separation).
·You described your parents as both extremely religious and emotionally cold. In particular, you informed Ms Lechner that your father was physically abusive towards you and your siblings and would hit you around the head with his fist, and on the head with a bread knife most meal times.
·You informed Ms Lechner that you felt as though you did not have a “childhood” because you did not own any toys, rarely played, and was expected to do the work of a man from an early age.
·You did develop a relationship with the neighbours when living in the Fisheries Farm. Daniella[4] was in her thirties and Norman[5] was in his sixties, and they would keep any eye on you and the other children when your parents were at religious meetings. You regarded Norman as more of a father than your own.
[4] A pseudonym.
[5] A pseudonym.
·When aged about eleven, Daniella encouraged you into a sexual relationship, which developed over time, and would involve both oral sex and intercourse. You informed Ms Lechner that it was of paramount importance to Daniella that she achieve orgasm through oral stimulation and you would do your best to please her. If she did not achieve orgasm, you would be spurned or humiliated and the sexual relationship would be temporarily ceased.
·The sexual contact with Daniella continued for some years and you consider that she provided you with your main source of affection, although such affection was withheld if you did not sexually satisfy her.
·Following Daniella and Norman attending a Scout’s camp and making suggestions to other boys, which were rejected, they were ultimately charged and left the town. You felt confused at the abrupt end of such relationship. Following the Scout camp “scandal”, you partially informed your mother of the abuse, and she advised you to “try and see the good in life and overlook the bad”.
·During this same period, you were intermittently sexually abused by a maternal uncle who would visit about twice a year and stay in the bungalow with you. He required you to perform both oral and anal intercourse.
·On leaving school you worked as a laboratory technician with Carlton United Breweries for about three years, during which time you attended night school.
·You developed a relationship with your first cousin, who was only fourteen years old, and who fell pregnant. In order to avoid family repercussions, you both moved to Queensland, where your daughter was born when her mother was only fifteen years old. You applied for special dispensation to marry, and this was granted, and you were ultimately married to your cousin for about ten years.
·You did return to live in Melbourne and at the age of about five to six months, your daughter was eventually diagnosed with PKU, a genetic disorder that creates malfunction of the pancreas and caused her to be grossly delayed in her development. She would cry for days on end, and she could not hold up her own body and had immense trouble with feeding. She was eventually placed in a home, after which you and your wife relocated to Queensland. On a visit to see your daughter, you found her “full of tubes”, which you had taken out, and she died within three weeks. You informed Ms Lechner that you continue to harbour “immense guilt about her death”.
·You remained with your cousin a further two years, during which time a second child was born via artificial insemination. You no longer had sexual contact with her for fear of another pregnancy, and when the second child was about twelve months old, you and your cousin parted ways.
·When you had moved to Queensland, you worked in a number of different bakeries, although for most of your life you have been employed as a dairy farmer. You had the farm for about twenty years before recently selling such property, but would also supplement your income by working on other people’s farms as well. You also worked in security for about ten years on a casual basis and, as I have already recorded, you have worked for your present employer for about eighteen years.
·Over the years you were a scout master for some years and a voluntary worker at a nursing home. For the last five or six years, you attended “Clean up Australia Day” in the community and also were involved in the Lions Service Club which ran a truck show to raise various monies. In earlier years, you had been involved in other voluntary activities such as collecting firewood to be delivered on a free basis to those in need.
·You met your second wife, Dorothy, the mother of the complainant, in the 1980s. At that time she had two children and was pregnant with a third child when you met. Again, as I have already recorded, you and Dorothy had one child, who is now thirty years old. You informed Ms Lechner that you had a good marriage with Dorothy and, in particular, a close relationship with Elizabeth – the complainant – who was aged four or five when you first met her.
·You informed Ms Lechner that you denied use of all illicit drugs, apart from trying marijuana in your teenage years. You do not take any prescribed medication and only have a glass or two of wine a night, but have never considered alcohol to be a problem for you.
The evidence of Ms Lechner
24The clinical psychologist, Ms Carla Lechner, interviewed you on 22 February 2017, 6 and 23 March 2017, and finally, on 5 April 2017. Such interviews were the basis of her report dated 30 April 2017 (exhibit B). Ms Lechner gave evidence at your plea hearing and was cross-examined.
25 In that report, Ms Lechner describes you as being polite, pleasant and cooperative at each of those interviews. She also describes how you dissolved into tears when recounting aspects of your history, and that you had never had the previous opportunity to speak so frankly about your past experiences of loss, grief and abuse.
26 Ms Lechner considered that your mood was low, with a range of symptoms consistent with a diagnosis of Major Depressive Disorder, although you do not currently entertain any thoughts of suicide, although this did occur to you in your mid- to late-teenage years, when you felt very depressed after the relationship with Daniella ended.
27 Ms Lechner performed psychometric testing and in particular, administered the Beck Depression Inventory, in which your score would suggest that you are in the “extreme” range of Depression. Furthermore, she also administered the Beck Anxiety Inventory, which would suggest that you have a mild anxiety problem. You noted that much of your anxiety relates to the pending court hearing and your uncertain future.
28 In relation to the offending behaviour, Ms Lechner noted that you admitted to all of the offences. You informed Ms Lechner that you felt strange after informing the police of your activities and considered it to be a “relief”.
29 When discussing your sexual offending, Ms Lechner recorded:
“… Mr. Walsh stated that he and Elizabeth had a close relationship from the outset (she was aged about 4-5 years at that time). He stated ‘it was love at first sight … I went out of my way to shower her with affection, I needed to do it because with my other daughter I couldn’t love her like that … I was over-enthusiastic’. They shared a very affectionate bond. He stated that she would cuddle up to him on the couch and he would stroke her body. Over time this included touching her vaginal area (both over and later, under) her clothing. When she was aged about nine years he believed she was having ‘mild’ orgasms through his touching as indicated by her body tensing and then relaxing. By the time she was aged about 12 years, he had progressed to oral stimulation of her clitoris. He believes that this was consensual and that she wanted ‘an orgasm’. He stated, for example, that when driving home together he would enquire ‘do we need to stop?’ as a means of asking if she wanted sexual contact. He reports that most times the answer was affirmative. He denies kissing her or removing her clothing but on occasions he would digitally stimulate her as well. Mr. Walsh also admitted that he was ‘sometimes’ aroused when doing so but that he would never ask the victim to touch him in any way. He reports that there was brief penile penetration on one occasion. He claims to have not masturbated either during or after their sexual contact. He also claims that he did not have masturbatory fantasies about her after their sexual relationship ended. I suspect that he was more sexually aroused by their interaction than he would like to admit.”
30 You informed Ms Lechner that you and the complainant remained close in her adult years and that she lived with you for about two years after her marriage ended. You noted that you did not re-partner after the death of Dorothy in 2001 and admitted that had Elizabeth, as an adult, not re-partnered, you would have probably asked her to marry you “not for sexual reasons but because I wanted to protect her”.
31 Ms Lechner reports that you are now able to see that you rationalised and justified your actions in the belief that you were providing the complainant with the sexual stimulation and satisfaction that she wanted. You claimed that at the time you did not view her as a child, just as you had not viewed yourself as a child when being abused by the neighbour in your childhood years.
32 You informed Ms Lechner that the complainant was your only victim. Ms Lechner also reports that whereas at the time of your offending you rationalised your actions and did not perceive yourself as causing harm to the complainant, over time you have realised that you created the environment for the sexual contact to occur and that, just as you had been robbed of normal sexual discovery, so was the complainant. Ms Lechner records that you stated that the impact on the complainant had been “devastating … it’s tormented her”. Furthermore, Ms Lechner claims that you understand that the complainant carried the burden of the “secret” of the abuse for many years and that you failed to protect her as a parent should and breached her trust.
33 Ms Lechner assessed your risk of sexual re-offending by utilising the STATIC – 99 and the Sexual Violence Risk – 20 (SVR-20).
34 On the basis of the findings on both tests, Ms Lechner considered that you are a “low” risk of future sexual offending. Ms Lechner note that although ostensibly you fulfil the criteria of a diagnosis of Paedophilic Disorder, given that some of the offending commenced prior to the complainant reaching puberty, your sexual interests (at that time) did not extend beyond the complainant, that is, you did not have generalised preferential sexual interest in children per se, rather you were fixated on the complainant. In particular, Ms Lechner states:
“At the time of his offending, Mr. Walsh technically fulfilled the criteria of a diagnosis of Paedophilic Disorder (DSM 5) however he has not re-offended in over thirty years and she was his only victim. In my opinion he is not a ‘preferential sex offender’ as such and his behaviour is better understood as that of a ‘regressed child molester’ with the justification of his abuse being conflated with his own experiences of being a victim. He would benefit from, and welcomes the opportunity to engage in longterm psychotherapy.”
35 Ms Lechner was of the opinion that you presented with residual PTSD arising from a range of traumatic experiences, including physical, mental and sexual abuse in your formative years, the loss of your daughter and the suicide of your younger brother. You also gave a history that you witnessed the gruesome suicide of a work colleague and at no time had you ever been offered counselling support. She considered that you currently presented in a depressed mood and while this is in part reactive pending the Court hearing, she considered that you had been depressed for many years.
36 Ultimately, Ms Lechner states, in part:
“With respect to his offending, Mr. Walsh takes full responsibility for his actions. It would appear that his own experiences of abuse ‘primed’ him for becoming a perpetrator in a number of ways. Firstly, he was exposed to sexual activity at a young age and therefore considered this to be normal, particularly as the sexual activity was enjoyable and he perceived himself to be a willing participant. It is likely, given his age and the protracted nature of the abuse, that this had some bearing on his neurological development. Secondly, the link between providing sexual gratification and being shown affection was very much a part of his experience and again, for him, became normative. Thirdly, the loss of his daughter and attendant feelings of both loss and guilt, also ‘primed’ him to view the victim as a ‘replacement’ daughter. It is unclear why it turned into a sexual love however, the ‘special bond’ that he wanted to share with her, in his mind, involved sexual contact. His need for love and affection and a ‘special bond’ overrode the moral implications of his behaviour and allowed him to rationalize his behaviour as fulfilling her needs not his. The fact that he thought about a marriage proposal in her adult years lends support to the notion that he was fixated on her, and infatuated with her well into her adult life.
It is only over time that Mr. Walsh has come to be honest about his motivations and to accept moral responsibility for his actions in the knowledge that his behaviour constitutes abuse that has had implications for the victim’s development. His decision to voluntarily come forward and to ‘come clean’ is, in part, his way of making amends to the victim.
Clearly the consequences of his offending are a matter for the Court to determine. From a purely psychological perspective, Mr. Walsh would greatly benefit from long-term psychotherapy that assists him in better understanding the boundaries that have been breached throughout his life, his own deep needs for affection and how this had led to his offending behaviour. He would also benefit from a better understanding of the psychological imbalance in the child/adult relationship as a lack of understanding in this regard was a contributing factor in his rationalisations that his behaviour did not constitute abuse. … .”
37 Under cross-examination, Ms Lechner was questioned about her opinion that you were “primed” to becoming a perpetrator from at least in part the sexual abuse that you suffered as a child. In particular, the following evidence was given:
Q:“We often here that people who are abused become abusers?---
A:Yes.
Q:Is that correct?---
A:Yes, Your Honour, it seems paradoxical in many ways.
Q:It does in many ways, you’re right?---
A:It’s still a difficult conundrum for us to get around ‑ ‑ ‑ .”
MR HANNAN:
Q:“There’s obviously been studies on it and research?---
A:Yes, for us to get our heads around, but um, yes, that’s the case, Your Honour, and um, those who are particularly vulnerable. Um, a case study done by Professor Jim Ogilvie you’d all be aware of, which was a long term follow up with victims of childhood sexual abuse indicates that those who are most vulnerable are young boys between the ages of about nine and 13 who have been victims of sexual abuse going on to develop psychological problems and possibly become abusers themselves.
Q:I suppose if we take it as a fact and accept it, the accused here would fit that category?---
A:Yes, he does.”
(T52, L20 – T53, L6).
The submissions made by your counsel in mitigation of your sentence
38 Your counsel made the following general submissions in relation to your sentence:
(a) Your plea of guilty to the offences was at the earliest possible time. Such pleas, so it was submitted, demonstrate both remorse and have considerable utilitarian value, not least that the complainant was not required to give evidence either at a committal or a full hearing of the matter;
(b) That you have by both your pleas of guilty, your comments to Ms Lechner, and your full and frank co-operation with the authorities indicated clear remorse on your part;
(c) The offending was over the period from 1 August 1983 to 31 December 1985. You have no prior convictions for any type of offending and indeed have not come to the notice of police over the ensuing years;
(d) That the opinion of Ms Lechner should be accepted, that your experience of sexual abuse as a child and the protracted nature of such abuse had some bearing on your neurological development. Furthermore, such a link between providing sexual gratification and being shown affection became “normative”. This also has to be taken in the context of the loss of your daughter and the attendant feelings of loss and guilt. All of these matters primed you for becoming a perpetrator of the offences. Reference was made to R v AWF [2000] VSCA 172 which held that where history of sexual abuse has contributed to the offender’s own criminality, that is a matter which can be taken into account by a sentencing judge as a factor in mitigation of penalty, as reducing the offender’s moral culpability for his acts, although the weight which should be given to it will depend very much on the facts of the individual case and be subject to a wide discretion in the sentencing judge;
(e) In particular, your counsel submitted that a significant mitigating factor was based on the principles enunciated in the Court of Appeal decision of R v Doran [2005] VSCA 271 wherein Buchanan JA (with whom Eames and Nettle JJA) stated:
“Most importantly, however, the appellant quite voluntarily, without any pressure from any authorities, provided the prosecution with all the evidence necessary to convict him of the majority of the crimes. In my view, the consequences of the appellant's admissions are that they reduce the need for a sentence to personally deter the appellant, they increase the prospects of his successful rehabilitation and they demonstrate genuine remorse for his actions. I would add that I think it important that the appellant should receive a demonstrable discount in his sentence in order to encourage others to make like admissions.
The sentencing remarks in his thoughtful and comprehensive sentencing remarks canvassed the relevant sentencing considerations. Those remarks are persuasive. The crimes themselves warranted stern punishment. Nevertheless, I have formed the opinion that the sentence imposed upon the appellant does not adequately reflect the significance of the appellant’s conduct since the detection of the offences which he committed on 11 August 2003. In Ryan v R, (2001) 206 CLR 267 at 295, Kirby J referred to the public interest that attached to a plea of guilty in revelation of additional offences which it would have been difficult to prove without confession and to the importance of a public confession of wrongdoing so that the victims would realise that they were wholly innocent. He continued:
‘Unless persons such as the appellant are encouraged to bring unreported cases to notice, the likelihood is that, in the great majority of instances, such crimes will not be reported. They will therefore go unpunished. Accordingly, both from the point of view of society and of the victims of crime, there are strong reasons of policy why the law should encourage offenders to make full confessions. It should certainly not discourage them. Encouraging a full confession may also be an important first step in securing help for, and counselling of, the offender this is likewise one of the objects of criminal punishment and that of judicial sentencing.’”
(f) Your counsel submitted that your prospects of rehabilitation are good, given that you have not re-offended over many years and bearing in mind the opinion that your prospects of re-offending are of a low risk. Furthermore, your counsel submitted that your degree of remorse exhibited in relation to this matter demonstrated to Ms Lechner and indeed by your actions in co-operation with authorities all augur well for rehabilitation;
(g) It was further submitted that given your diagnosis of Depression and residual Post-Traumatic Stress Disorder, any period of imprisonment would be harder than someone who has no such diagnosis.
39 Ultimately, it was submitted by your counsel that taking all the mitigating factors into account, a suspended sentence would be appropriate (suspended sentences still being available given the date of offending). In particular, reference was made to Director of Public Prosecutions v Stewart [2003] VSCA 197 as an example where a sentencing judge ordered a suspended sentence.
The response of the Prosecution
40 Counsel for the Prosecution accepted that your plea of guilty was an early plea and, accordingly, has utilitarian value in saving the cost and time of a trial, and also obviates the necessity for the complainant to give evidence either at a committal or a full hearing of the matter. Counsel also accepted that you had no prior convictions and indeed, it would appear that you have not come to the notice of police for any type of offending over the last thirty years or so.
41 Although Counsel for the Prosecution accepts that there is some degree of remorse on your part, he highlights that part of the opinion of Ms Lechner where she records that it is an ongoing process as to your understanding as to the consequences of the sexual offending in relation to the subject charges.
42 In particular, Counsel for the Prosecution, although accepting that childhood sexual abuse can be a relevant sentencing factor, he submits that any relevance must have a foundation whereby firstly, it is accepted as a matter of probability that such childhood sexual abuse did occur and, secondly, that that childhood abuse did contribute to the offender’s own criminality. In the circumstances of this matter, Counsel for the Prosecution submits that the Court should not be so satisfied of the allegations of childhood sexual abuse and that in any event, it is not clear from the opinion of Ms Lechner that such childhood abuse (if it occurred) contributed to your criminality.
43 Counsel for the prosecution, although accepting the principles enunciated in R v Doran (op cit), submitted that the factual circumstances of this matter are such that you did not make a full disclosure of your criminal activities and also, to the extent that you made admissions about your criminal activities, the Prosecution case was not dependent on those admissions, bearing in mind the contents of the depositions made by the complainant. Counsel for the Prosecution conceded that some application of the principle is appropriate, given that there were forthcoming admissions from you and you appeared generally to co-operate with the authorities. As I understood his ultimate submission, such was a mitigating factor but in the circumstances of this matter, would not be such a significant mitigating factor as submitted by your counsel.
44 Counsel for the Prosecution submitted that just punishment, general deterrence and specific deterrence are relevant in determining an appropriate sentence. Counsel did accept that given your age, the history since the offending and the extent to which I take into account the opinion of the psychologist as to re-offending, specific deterrence is lessened than what it otherwise would be.
45 Counsel for the Prosecution joined with your counsel that although it is clearly established as to what the maximum penalties are for each of the offences at the time of offending, it is difficult to ascertain any sentencing practices at and around the time of the offending.
46 Counsel for the Prosecution did refer to the decision of R v MKG [2006] VSCA 131, which involved the Court of Appeal reviewing a sentence given in relation to two counts of committing an indecent act with a child under the age of sixteen and two counts of incest. Of course, at the time of that sentence, the maximum prescribed penalty for incest was 25 years’ imprisonment and the maximum prescribed penalty for the offence of an indecent act with a child under the age of sixteen was ten years’ imprisonment.
47 Counsel for the Prosecution also submitted, with no opposition from your Counsel, that in the event that you are convicted and sentenced to a period of imprisonment on Charges 1 and 2, you are to be sentenced as a Serious Sexual Offender in relation to the third charge pursuant to the “Serious Offenders” provisions set out in Part 2A of the Sentencing Act 1991.
Conclusion
48 Charges 1, 2 and 3, which involve sexual offending, are all representative charges. Charges 1 and 3 plead that you indecently assaulted the complainant, Elizabeth Payne, over the period from 1 August 1983 to 31 December 1985 by penetrating her vagina with your finger (Charge 1) and penetrating her vagina with your tongue (Charge 3). Charge 2 pleads that you committed incest – that is, introduced your penis into the vagina of Elizabeth Payne over the period from 1 August 1983 to 31 December 1985. Each of the activities constituting the indecent assaults and the incest occurred many times over the stipulated period of time.
49 A representative charge does not increase the maximum sentence to which you are liable, nor does it permit a sentence to be imposed which is disproportionate to the offence or offences charged. However, a representative charge can result in a heavier sentence than a charge relating to an isolated incident. (See Beyer v R [2011] VSCA 15 at paragraph [17], per Harper JA; Director of Public Prosecutions v EB [2008] VSCA 127 at paragraph [15], per Nettle JA; DPC v The Queen [2011] VSCA 395 at paragraph [60], per Ross JA; DP v the Queen [2011] VSC 1 at paragraph [9], per Weinberg and King AJA; R v CJK [2009] VSCA 58 at paragraph [46], per Warren CJ; R v RGG [2008] VSCA 94 at paragraph [5], per Ashley JA.)
50 As stated by Priest JA in Reid (a Pseudonym) v The Queen [2014] VSCA 145 at paragraph [75], the significance of a representative charge on sentence is twofold – first, a representative charge may operate to deny you any leniency that might otherwise result from the offence being an isolated incident and, secondly, it puts the offence into context.
51 I consider each of these three Charges to be serious offending and in particular, the incest charge.
52 I refer to R v MKG (op cit) whereat paragraph [10], Chernov JA stated, in part:
“The crime of incest is abhorred by the community. As Batt, J.A. said in R. v. VZ [[1998] 7 VR 63 at 699] it is a repugnant offence that strikes at the core of the family relationship and involves the breach of trust and the dereliction of protective duties. … That the appellant abused his parental position of moral superiority and trust in relation to the complainant cannot be sufficiently emphasised. Instead of protecting his young daughter, he did her serious harm. Moreover, the sentencing principles of general deterrence, denunciation and just punishment assumed considerable importance in this case. … .”
53 Much the same can be said about your sexual offending in general and in particular, the acts of incest over a period of nearly two-and-a-half years when your stepdaughter was aged between eleven to thirteen years old.
54 One only has to read the Victim Impact Statement of the complainant and indeed, that of her sister, to understand the physical and mental pain and turmoil that your stepdaughter underwent over those years when the sexual offending occurred and indeed, how that has impacted on her since that date.
55 Charge 4 relates to the assault you occasioned on the complainant towards the end of 1985 when she was twelve or thirteen. Apparently she attended a party with her brother and during the course of the party, consumed alcohol and ultimately, had to be collected from the party. The following evening, she was sitting at the dinner table with the family when you raised the issue of her actions and demanded an apology. When the apology was not forthcoming, you threatened to beat her with a piece of poly pipe which you had with you.
56 The complainant did not apologise and you stood up and leant over the table and struck her on the neck, on the arms and back, causing her to start running through the house to get away, after which you followed her and continually beat her with the poly pipe which had a brass hose connector attached to it. In the course of so doing, you struck her brother, who was attempting to shield the complainant from your assault. Ultimately, the complainant fell to the ground and covered herself up after you stopped hitting her and went back inside. She was crying and had a substantial amount of welts and raised bruises all over her back, arms and the back of her legs which were clearly visible, and gave rise to considerable pain for the next month.
57 Again, one only has to read the Victim Impact Statement that vividly describes what occurred in the assault and its consequences. It must be remembered that this assault occurred in circumstances where you have expressed to others, a particular love for the complainant which gave rise to the sexual relationship the subject of your other offences. Be that as it may, the assault was particularly nasty and appeared to be totally disproportionate to the issues raised by you with your stepdaughter.
58 As I have already recorded in these Reasons, the law provides that the maximum penalty applicable in respect of the crimes of incest and indecent assault are those applicable at the time of your offending – that is, a maximum penalty of 20 years’ imprisonment for the crime of incest, and a maximum penalty of five years’ imprisonment for the crime of indecent assault. Section 5(2) of the Sentencing Act 1991 also requires me, in determining a sentence, to have regard to “current sentencing practices”. Perhaps understandably, no evidence was led before me as to what those practices were at the time of your offending.
59 I refer to the Court of Appeal decision in Stalio v The Queen [2012] VSCA 120, which was an appeal against sentence in relation to 10 charges of indecent assault committed against five girls under the age of 16 between 1974 and 1983. Issues arose as to the meaning of “current sentencing practices”.
60 The Court of Appeal (consisting of Neave JA, Osborn JA, and King AJA) stated at paragraph [9]:
“In our opinion:
(A)the phrase ‘current sentencing practices’ in s5(2) of the Sentencing Act relates to present sentencing practices;
(B)the factors stated in s5(2) are not exclusive of the circumstances which are to be taken into account on sentencing;
(C)the concept of equal justice requires regard to be had to sentencing practices at the date of the offence if those practices can be demonstrated to have required the imposition of a materially lesser sanction for like offences than current sentencing practices would impose for the offence;
(D)the applicant cannot demonstrate that the judge failed to have regard to a relevant consideration arising from sentencing practice at the time of the offence;
(E)the judge’s reference to current community abhorrence of the offending in issue demonstrated no error.”
61 The later decision of Curypko v The Queen [2014] VSCA 192, wherein Ashley JA (with whom Neave JA agreed) stated at paragraph [72]:
“Something more must be said about sentencing practice. It was established by Stalio v The Queen [citation omitted] that the mandated requirement to have regard to ‘current sentencing practices’ – see s5(2) of the Sentencing Act 1991 – is a reference to sentencing practices at time of sentence. On the other hand, the principle of equal justice makes it relevant to consider sentencing practices at the time of the commission of historical offences so far as such practices can be satisfactorily established. The fact that the maximum penalty for an offence has increased between the date of offending and the date of sentence may itself cast some light on sentencing practices at time of offending, for instance, by adding to what little use can ordinarily be made of recourse to bare sentencing statistics.”
62 I also refer to the Court of Appeal decision of DPP v Dalgliesh [2016] VSCA 148, wherein the Court of Appeal, consisting of Maxwell ACJ, Redlich and Beach JJA, stated at paragraphs [126]-[130]:
“126.As we have said, community values have an important role to play in assessments of the objective gravity of a particular offence. Sentencing for incest must reflect society’s denunciation of the sexual abuse of children and the profound harm which it causes. The very high maximum penalty underlines the seriousness with which the offence is regarded.
127.Our review of sentencing for incest enables us to make a number of general observations about the current state of sentencing. Most sentences for incest with a dependent child under the age of 18 are around three years and six months or four years’ imprisonment. Slightly higher sentences are imposed if the charge is a representative one involving high levels of repetition or victim impact, or if it involves other circumstances of aggravation, such as ejaculation, pregnancy, threats or overt violence. The highest recorded sentence in such circumstances is six years on a guilty plea and seven years following a trial. There is little evidence of any real differential where the victim is very young.
128.In our view, current sentencing for incest reveals error in principle. The sentencing practice which has developed is not a proportionate response to the objective gravity of the offence, nor does it sufficiently reflect the moral culpability of the offender. Sentences for incest offences of mid-range seriousness must be adjusted upwards. That is a task for sentencing judges and, on appeal, for this Court. The criminal justice system can be — and should be — self-correcting.
129.Incest is a crime of violence and must be so regarded. General and specific deterrence and denunciation must be given their proper emphasis. The long-term harm done to the victim, now better understood, must be given due weight in the sentencing calculus. Sentences must be commensurate with the seriousness of the breach of parental responsibility involved.
130.On the current state of sentencing, there is no sufficient differentiation between worst case and mid-range offending. As we have said, sentences for mid-category offending have been constrained by sentences for worst category offending, and the sentencing range for mid-range offences has been inappropriately compressed.”
63 In coming to an appropriate sentence, I state that I have applied the principles dealing with the application of current sentencing practices to historical sexual offences outlined in the cases of Stalio [op cit] and Curypko [op cit], and the Court of Appeal’s direction in Dalgliesh [op cit].
64 In mitigation of any sentence, I do take into account your early plea of guilty in relation to the offences. A plea of guilty, at the very least, has utilitarian value in saving the time and cost of a trial (see Phillips v The Queen [2012] VSCA 140, in particular, at paragraph [36]), and, in the circumstances of this matter, saving the complainant from being required to give evidence at a committal and trial.
65 It is always a question for the sentencing judge whether remorse, a willingness to facilitate the course of justice, and acceptance of responsibility are to be inferred from a plea of guilty (again, see Phillips v The Queen [op cit] at paragraph [96]). In the circumstances of this matter, I do consider that your early plea of guilty, and, more particularly, cooperation shown by you in dealing with the relevant authorities and various comments you made to Ms Lechner, permit me to infer that you have some remorse for your offending. I also note that at the last hearing of the plea on 28 August 2017, a letter was tendered which was written by you to the complainant in the following terms:
“I wish to inform you how sorry I am for the fact that I misused the trust you placed in me. I should have been responsible for your wellbeing not taking advantage of the situation.”
66 You have no prior convictions for any type of offending prior to the subject offending, and, indeed, over the last 30 years or more since the offending there has not been any reported offending. You have always been a hardworking man and the proprietor of your last employer held you in high regard as someone who displayed an excellent work ethic (over the last 18 years) and was honourable and honest. Furthermore, seemingly over the more than 30 years since this offending, you have been a responsible member of the community involving yourself in a variety of community activities.
67 I do accept, as a matter of probability, that as stated to Ms Lechner, you were sexually abused as a child by the neighbours from about the age of 11 for some years and also by a maternal uncle who required you to perform both oral and anal intercourse. Furthermore, I also accept the history that you gave Ms Lechner that you were raised by extremely religious and emotionally cold parents and effectively did not have a childhood, as you rarely played and was expected to do the work of man from an early age. Your father was physically abusive towards and you and your siblings.
68 I also accept the opinion of Ms Lechner that your experiences of sexual abuse “primed” you to become a perpetrator of sexual abuse. I also accept that the loss of your daughter and attendant feelings of both loss and guilt also “primed” you to view the complainant as a replacement daughter.
69 I do refer to R v AWF [2000] VSCA 172, wherein Ormiston JA stated at [4]:
“There is in fact very little authority upon the significance of childhood sexual abuse as a factor in sentencing. At the least the consensus of views expressed by judges is to the effect that such evidence is relevant, but its relevance and persuasiveness will vary greatly from case to case, especially where the charges are of the most serious kind. A recent summary of authorities appeared in the unreported decision of R v Anthony George Reid [citation omitted] in which a number of unreported New South Wales cases were referred to. So in a case of both sexual assault and murder Hunt, CJ at CL said in R v Lett [citation omitted]:
‘The link no doubt helps to explain why the offender committed the offence, but it could hardly be said to excuse it. Minds may well differ as to whether such a history should mitigate the offence of child sexual abuse committed by the offender, but I am quite unable to see how it could possibly mitigate the offence of murder ... .’
Later in R v Balfour [citation omitted] the Court there held in the circumstances that it was unable to conclude that the sentencing judge had made an error by failing to extend leniency to the applicant because of childhood sexual molestation. On the other hand in R v AB Sperling, J. (with whom Gleeson, CJ agreed) said [citation omitted] that sexual molestation by teachers during an applicant's adolescence was a circumstance favourable to the applicant. So in Reid James, J. (with whom Mason P and Grove J concurred) said:
‘In my opinion, if it is established that a child sexual assault offender was himself sexually abused as a child and that that history of sexual abuse has contributed to the offender's own criminality, that is a matter which can be taken into account by a sentencing judge as a factor in mitigation of penalty as reducing the offender's moral culpability for his acts, although the weight which should be given to it will depend very much on the facts of the individual case and will be subject to a wide discretion in the sentencing judge.’”
70 Ormiston J noted that such evidence is clearly relevant where there is no dispute to the existence of the abuse and there is some expert evidence which would connect that abuse with the offender’s subsequent behaviour.
71 In all the circumstances, I am so satisfied there is a connection between your experience of being sexually molested as a child and the perpetration of the subject offences. I do accept that consistent with the principles in R v AWF (op cit), such finding ameliorates to some extent your moral culpability in respect of the offending and accordingly, is relevant in determining an appropriate sentence.
72 Your counsel has submitted that a significant mitigating factor – one for which you should receive a demonstrable discount in your sentence – is that you voluntarily, without any pressure from the authorities, provided the prosecution with all the evidence necessary to convict you of the majority of the crimes.
73 I refer to the Court of Appeal decision of Younan v R [2017] VSCA 12, wherein the Court (consisting of Redlich JA and Ferguson JA) state, in part:
“Despite the very serious nature of this type of offending [the offending involved multiple armed robberies] and the need to give appropriate weight to denunciation and general deterrence, all of the mitigating factors present in the cases referred to were also present in this case. There were however two additional mitigating feature present, which distinguished this case from all those cited. First, the applicant was willing to assist investigating police. Second, there was the very significant mitigating factor of his frank admissions which provided the only evidence that implicated him in the offending. As was recognised by the sentencing judge, and conceded by the Crown, the prosecution had no evidence to establish the applicant’s guilt without his admissions.
The right to a significant discount where an offender, by his admissions, provides proof as to his guilt of an offence which the prosecution could not otherwise have established is now well settled. Street CJ recognised in R v Ellis [citation omitted] that a significant added element of leniency arises from a confession of guilt in such circumstances. [citation omitted] The principle rests upon the policy of the criminal law to encourage a guilty person to come forward and make a confession of guilt to his offending. The principle and its rationale was affirmed by McHugh J in Ryan v R. [citation omitted] Subsequently, in R v Doran, [citation omitted] Buchanan JA (with whom Eames and Nettle JJA agreed) observed that the appellant had voluntarily provided the prosecution with all the evidence necessary to convict him of the majority of the crimes. His Honour considered it necessary that ‘the appellant should receive a demonstrable discount in his sentence in order to encourage others to make like admissions’. [citation omitted] The principle is now often described in Victorian courts as the ‘Doran discount’. The principle was enlivened in JBM v R, [citation omitted] as the offences could not have been proved in the absence of the appellant’s co-operation and admissions. Weinberg JA, with whom Priest JA agreed, observed, citing Doran, that public policy demanded that the appellant receive a significant reduction in any sentence that might otherwise have been imposed. [citation omitted] In order to facilitate their successful prosecution, public policy requires that offenders should be encouraged to admit their crimes by granting them transparently substantial reductions in sentence where that occurs.
The parameters of the discount afforded to an offender who made admissions in such circumstances was referred to in Adamson v R, [citation omitted] the applicant having complained that the sentencing judge had not made adequate allowance for the admissions he made. The Court (Warren CJ, Redlich and Weinberg JJA), observed that although the sentencing judge did not state in his reasons that a substantial discount had been given on the offences, it was to be inferred from the sentences imposed on all the charges, that the judge had allowed a discount of between 30 per cent and 50 per cent on all those charges that depended upon his admissions. [citation omitted] There was no suggestion that such discounts were excessive.”
(see paragraph [38] – [40])
74 It is to be noted that where a substantial discount is given in relation to a sentence on the basis of the so-called Doran discount, the voluntary confession of the accused is in circumstances where the prosecution otherwise would not have been able to prosecute the subject offences. However, as is made plain in JBM v R [2013] VSCA 69, the so-called Doran discount can apply in varying degrees depending on the circumstances of the matter. I refer to the judgment of Weinberg and Priest JJA in JBM (op cit) wherein they state:
“That said, there were also some powerful mitigating factors present. The first such factor was the appellant’s plea of guilty, which the trial judge accepted demonstrated genuine remorse. That plea also had significant utilitarian value. In addition, and perhaps more importantly, there was the fact that this prosecution could not have proceeded without the appellant’s cooperation with the police, and the full admissions that he made.
It is true, in one sense, that the appellant’s offences were already ‘known to police’. As a matter of reality, however, they were ‘known’ only from a theoretical perspective. What the police had been told could not possibly have formed the basis of any prosecution. It was likely that the appellant would have appreciated that fact.
It may be correct that the appellant did not, in this case, tell the police anything that they did not already suspect. However, it is one thing to have been told by a child of three about something that may have happened. It is altogether another to be able to make any forensic use of such information. The appellant completed the picture. Indeed, he drew it. He did so voluntarily, and without any prevarication on his part. That, of itself, entitled him to a significant discount, greater than that which would normally be accorded to a plea of guilty.
The point can be illustrated by reference to DPP v C P D. [citation omitted] That was not a case where:
‘the offender had come forward voluntarily to disclose offences which would otherwise have been unknown. Rather, CPD made his admissions only after being required by police to attend for a formal interview and to respond to the serious allegations which the victims had made in their VATE interviews.’
This court nevertheless held that C P D’s admissions and his pleas of guilty ‘entitled him to a significant sentencing discount’, [citation omitted] though, not, in the circumstances, a ‘really big discount’ of at least 50%.
In Ryan v R, [citation omitted] McHugh J said, summarising the effect of the decision of the New South Wales Court of Criminal Appeal in R v Ellis: [citation omitted]
‘[T]he degree of leniency to be shown for the disclosure of unknown offences will vary according to (1) the likelihood that the offences would have been discovered by the authorities; and (2) the likelihood that the offences could have been proven beyond reasonable doubt in a court without the disclosure. [citation omitted]
75 In the circumstances of this matter, there is no issue that you voluntarily approached the police on 22 June 2015, at which time the police had no knowledge whatsoever of any offending against the complainant. In that initial record of interview you did make admissions about penetrating the vagina of the complainant with your tongue and fingers. However at Questions 92 to 95, you denied ever having sexual intercourse with the complainant.
76 Your attendance at the police station on 22 June 2015 following after the complainant had informed her family that you had molested her when young and indeed you had approached the complainant as to what she proposed doing.
77 It is not clear, absent your substantial admissions made on 22 June 2015, whether the police would have known about the offending. In this respect, I refer to the first statement made by the complainant on 8 September 2016, wherein the opening three or four paragraphs the complainant makes clear that she had not been “overly keen about” reporting the matter to the police given that what had occurred between her and you basically had been put behind her and she did not want to involve her and the family in the hurt and anguish “of bringing this all out in the open and airing our dirty linen”. However, it must be stressed the complainant was being urged by other family members to go to the police and report your offending.
78 In any event, in her initial statement dated 9 October 2015, the complainant noted that she could only remember one occasion that you attempted to insert your penis into her vagina and that it hurt and you stopped.
79 In the second record of interview on 3 February 2016, again, during that record of interview, at Questions 798 to 807 and also Question 803, you made clear that intercourse only occurred on one occasion and it was not you who had instigated such act and that you were a very reluctant party to it. As recorded in the prosecution opening at Question 803, you stated:
“… I'd like it on the record that at no stage in my relationship with Elizabeth over the years have Elizabeth and I ever had what I would call a good - however you wanna put it - screw, bang, fuck or whatever. Elizabeth and I have never encompassed that between us, never.”
80 However, in her second statement made on 8 September 2016, the complainant asserted:
“There were times that Max would have sex with me in the back room. I do remember him on top of me in the back room having sex a number of times.
I remember being on the ground and being on top of me. His penis was inside my vagina. He would be on top of me and his penis was going in and out of my vagina. I have no memory if he ejaculated in me or not.”
81 I also note that when you were interviewed by Ms Lechner in early 2017, you gave a history that there was only “brief penile penetration on one occasion”. Of course, you have pleaded guilty to Charge 2 which is a representative charge involving the act of sexual penetration by your penis into the vagina of the complainant.
82 In the circumstances of this matter, bearing in mind that the complainant did come forward to make complaints, her statements to the police would have been an adequate basis for mounting a prosecution for the subject offences.
83 I do consider that you are entitled to a sentencing discount beyond the discount for pleading guilty on the basis that you did voluntarily come forward and admit the substance of the bulk of the offences, save for the repetitive nature of the sexual intercourse to which you ultimately pleaded. Although it is a matter of speculation as to whether the complainant would have come forward and made complaints in the absence of your voluntary confessions, it must also be borne in mind that you were aware that prior to going to the authorities the complainant had aired her grievances with other members of her family and had been urged to attend police.
84 In all the circumstances, I consider that the discount should not be as extensive as one given in circumstances where an accused makes a full confession in circumstances where the authorities, absent that confession, would have no prospect of prosecuting the crimes confessed to.
85 As I have already recorded, I consider that the offences relating to sexual offending to be serious. Although, as I have accepted, your past experiences as a child primed you for such offending, such does not alter the fact that such offending was a frightful breach of your parental position in circumstances where you had complete control over the situation. Although I accept that for a variety of reasons, you perceived yourself having a special relationship with your step-daughter during such offending, I do find, as suggested by Ms Lechner that part of your sexual offending did occur for your sexual gratification.
86 I also accept the submission that given the diagnosis of Ms Lechner of depression and residual Post-Traumatic Stress Disorder, any period of imprisonment would be harder for you than for someone who has no such diagnosis, consistent with the principles enunciated in R v Verdins & Ors (2007) 16 VR 269, and in particular Principle 5 contained at paragraph [32].
87 The principles of general deterrence, denunciation and just punishment assume considerable importance in coming to a view as to an appropriate sentence. I consider that the principle of specific deterrence, although relevant, does not loom large given your age, the seemingly long period of no offending from when you ceased your offending with the complainant in 1985 until now and, indeed, the opinion of Ms Lechner that you are at a low risk of reoffending.
88 I intend to convict you of all offences and order a period of immediate incarceration. Your counsel urged me that any period of imprisonment should be wholly suspended and reference was made to DPP v Stewart [2003] VSCA 197. I reject that submission.
89 I do not consider that the circumstances relevant to this case can be compared to those in Stewart. In any event, the Court of Appeal in determining the appeal brought by the DPP based on manifest inadequacy described the sentence as:
“unquestionably a most merciful one and either at the very lowest point of the appropriate range or manifestly inadequate.”(See para [31])
90 Given you are to be convicted and sentenced to periods of imprisonment on Charges 1 and 2, you will be sentenced as a “serious sexual offender” within the meaning of Part 2A of the Sentencing Act 1991 in relation to Charge 3. Such status is to be entered into the records of the Court.
91 Section 6D of the Sentencing Act 1991 directs the Court, in determining the length of sentence to have regard to the protection of the community as the principal purpose for which the sentence is imposed, and may impose a sentence longer than which is proportionate to the gravity of the offence considered in the light of the objective circumstances. In the circumstances of this matter, the prosecution do not seek a disproportionate sentence. After due consideration, I do not intend to order a disproportionate sentence.
92 Pursuant to s6E Sentencing Act 1991, every term of imprisonment imposed by a court on a serious offender for a relative offence must, unless otherwise directed by the court, be served cumulatively on any other sentence of imprisonment imposed on the offender at the same time.
93 Save for that principle, I do consider that there should be a degree of concurrency in relation to Charges 1, 2 and 3 as the acts constituting Charges 1 and 3 often occurred or overlapped with the offending involving incest. I do note and apply the decision of Gordon v R [2013] VSCA 343 [74] and RH McL v R (2000) 203 CLR 452 which comments on the seeming tension between s6E of the Sentencing Act 1991 and the principle of totality.
94 Mr Walsh, please be upstanding. On Charge 1, you will be convicted and sentenced to a period of 1 year imprisonment.
95 In relation to Charge 2, you will be convicted and sentenced to a period of 4 years imprisonment. This is the base sentence.
96 In relation to Charge 3, you will be convicted as a serious sexual offender and sentenced to a period of 1 year imprisonment.
97 In relation to Charge 4, you will be convicted and sentenced to a period of 2 months imprisonment.
98 The Court directs that 4 months of the sentence pertaining to Charge 1, 7 months of the sentence pertaining to Charge 3 and 1 month of the sentence pertaining to Charge 4 are to be served cumulatively upon each other and upon the sentence imposed in relation to Charge 2.
99 The total effective sentence is 5 years imprisonment and there will be a non-parole period of 2 years and 10 months imprisonment.
100 I declare that you have served 113 days up to today as pre‑sentence detention and such period should be administratively deducted from this sentence as time already served.
101 Pursuant to the provisions of the Sex Offenders Registration Act 2004 and bearing in mind the nature of the offences in Charge 1, Charge 2 and Charge 3, I order, pursuant to s34(1)(c)(ii) of the Sex Offenders Registration Act 2004, your name is to be entered into the register of sex offenders with the length of the reporting period being the remainder of your life.
102 I declare, save for your pleas of guilty, I would have ordered a period of 7 years imprisonment.
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