Director of Public Prosecutions v Waring (a pseudonym)

[2021] VCC 1419

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

LUCAS WARING (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE DYER
WHERE HELD:	Melbourne
DATE OF HEARING:	9 September 2021
DATE OF SENTENCE:	23 September 2021
CASE MAY BE CITED AS:	DPP v Waring (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2021] VCC 1419

REASONS FOR SENTENCE
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Subject:Criminal law 

Catchwords:   Sexual assault; Sexual Penetration

Legislation Cited:  Crimes Act 1958; Sentencing Act 1991

Cases Cited:DPP v Walsh (a pseudonym) 28 VSCA 172; DPP v

Amaral [2020] VSCA 290; DPP v Walsh [2018] VSCA 172

Sentence:  9 years’ imprisonment with a minimum term of 5 years and

6 months

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms J Malobabic	Director of Public Prosecutions
For the Accused	Ms V Jones	Gallant Law

HIS HONOUR:

1On 9 September 2021 you, Lucas Waring,[1] pleaded guilty to an indictment containing two charges of sexual assault of a child under the age of 16, and one charge of sexual penetration of a stepchild.  Charge 1 is a course of conduct charge relating to a period between 1 October 2020 and 11 January 2021.  Charge 2 relates to your actions occurring on 6 January 2021, Charge 3 that of sexual penetration of your stepdaughter occurred on 7 January 2021.

[1]A pseudonym

2Parliament has prescribed maximum penalties for your offending as follows:

· Sexual assault of a child under 16 – s 49D(1) Crimes Act 1958 – 10 years’ imprisonment;

· Sexual penetration of a stepchild – s 50D(1) Crimes Act 1958 – 25 years’ imprisonment.

3The details of your offending are set out in the summary of prosecution opening dated 19 August 2021, which was tendered in evidence in your plea hearing.[2]  In short your offending involved your 13 year old step daughter and occurred between 1 October 2020 and 11 January 2021.  You began to groom your victim in March 2020 by having showers with her when you were alone at the family home.  This occurred when her two younger brothers were in childcare and her mother was at work.  From October 2020 you started kissing your victim, on one occasion you grabbed her neck and tried to kiss her.  This was witnesses by your wife, who had just returned home.  She confronted you and you denied any wrongdoing.

[2]Exhibit A

4The circumstances of Charge 1, being sexual assault by touching or rubbing your victim’s vagina, began on 1 October 2020 when your victim was sleeping on a couch and you started to touch her leg and then moved your hand up and started rubbing her vagina.  Your victim was wearing pyjamas.  Everyone else in the house was asleep at that time.  This offending continued until 11 January 2021 on a weekly basis, and included rubbing the vagina both over and underneath underwear.  Your victim described being uncomfortable and sometimes it would hurt if you touched her “like really hard.”  She would then ask you to stop.  She would also tell you that she was having her period so you would stop touching her vagina.

5The second charge of sexual assault involving licking your victim’s vagina occurred on 6 January 2021 when you starting kissing your victim on the stomach and proceeded to lick her vagina.  As soon as you did that your victim became scared.  You stopped immediately.

6The third charge of sexual penetration of a stepchild occurred on 7 January 2021 when you inserted your finger into your victim’s vagina.  This occurred on your victim’s bed.  She pushed your hand away and you got upset.  Your victim stated that this penetration “hurt a bit” and that he “doesn’t tell me, he just does it.”

7You have pleaded guilty to this offending at an early stage and also you have admitted your offending when first interviewed by police.  To that extent your conduct has avoided further trauma and stress for your victim and others who would have been involved in the prosecution.  I also note that there is no prior offending or any criminal history alleged against you.

8Notwithstanding your admission of your offending and early plea of guilty, victim impact statements from your principal victim and her mother were read by the prosecutor during your plea hearing and were later tendered into evidence.[3]  It is abundantly clear from these victim impact statements that your offending has had, and continues to have, a dramatic effect on the emotional state of your step daughter whose youth and trust you abused, her mother, and undoubtedly your two younger natural children.

[3]Exhibits B & C

9These tragic consequences of your offending must be reflected in the court’s denunciation of your disgraceful conduct.

10Quite properly the courts have regarded all sexual offending involving children as inherently serious.  The crime of incest has been described in appellate courts as “an offence of very high culpability, since it is so obviously contrary to every tenent  of parental care for children and since every parent is taken to understand that sexual activity is absolutely prohibited.”[4]

[4]DPP v Walsh (a pseudonym) [2018] VSCA 172 at [33]

Your personal circumstances

11You are 35 years of age and were 34 at the time of your offending, more than 20 years older than your victim.  You had been raised in country Victoria and I note that you have suffered from Type 1 diabetes from the age of three.  I accept the submissions made by Ms Jones during your plea hearing that you have struggled to manage your blood sugar levels throughout your life. 

12You completed your secondary education to VCAL level and completed an apprenticeship in mechanics, spending some years working in rural settings.  You become qualified as a heavy road transport mechanic and managed to achieve steady employment as a tractor operator for a period of between eight and 10 years.

13You met your victim’s mother and married in 2014, purchasing a house in the outer south east suburbs of Melbourne.  You had two sons, now aged six and four, and your wife worked full-time in a warehouse whilst you stayed at home with the three children, including your victim.

14I accept the matters put by your counsel during the plea concerning earlier episodes of trauma, including your brother’s death when you were 14 years old, your mother’s mental health issues and the serious motorcycle accident suffered by your father in 2014 causing him to lose a leg  and suffer other serious injuries.  I also accept that you have significant support from members of your broader family, and I do note the character references provided by your mother and aunt which were tendered during your plea hearing.[5]

[5]Exhibits 4 & 5

15I also accept the submission made by Ms Jones that your plea of guilty, and indeed your conduct during your police interview acknowledging the extent of your offending, is indicative of a degree of genuine remorse and as such warrants further consideration in terms of the sentence to be imposed upon you.

16Two psychological reports from Mr Bilyk dated 28 August 2021 and 8 September 2021 were tendered by Ms Jones during your plea hearing.[6]  Mr Bilyk noted what I regard as a generally accurate and fulsome history of your offending and noting your acknowledgement, albeit in hindsight, that your victim:

“… may have felt awkward, fearful and uncomfortable with him becoming intimate with her, given their age difference and his role as a father figure.”[7]

[6]Exhibit 2

[7]Exhibit 2 (report dated 28/08/2021 at para 24)

17Mr Bilyk records in his report your acknowledgement that there was a power imbalance inherent in a relationship with an underage person, and that a person of the age of your victim is not considered to possess the maturity to make an informed decision pertaining to matters of sex.[8]

[8]Ibid at para 25

18In terms of your potential for rehabilitation, Mr Bilyk described you as a “situational, rather than preferential, child sex abuser” and that “there was no evidence of voyeurism, exhibitionism or sexual deviance”.[9]

[9]Ibid at paras [29] & [46]

19I also accept that you have spent your time productively whilst detained in custody and I note the various certificates which were tendered by Ms Jones during your plea hearing.[10]  You have completed in custody a number of programs, including learning for life and healthy living.  The management of your diabetes, I accept, is likely to cause further difficulty whilst imprisoned, and I note that this is your first time in custody.

[10]Exhibit 3

Sentencing considerations

20

The three offences to which you have pleaded guilty form part of the “standard sentence regime” described in s5A of the Sentencing Act 1991. The standard sentence for sexual assault of a child under the age of 16 years is four years' imprisonment.  The standard sentence for sexual penetration of a stepchild is

10 years’ imprisonment.   Offences of this nature have historically warranted stern sentencing.  The Court of Appeal in DPP v Amaral[11]  stated:

“… sexual abuse of children by those in positions of trust or responsibility with respect to them calls for severe punishment.”

[11][2020] VSCA 290 at [33]

21In DPP v Walsh[12] the Court of Appeal stated:

“Incest involving a child is an appalling crime.  It involves a breach of trust of the most fundamental kind, and an inexplicable abdication of parental responsibility.  Just as seriously, it involves a cynical exploitation by the parent of the opportunity for sexual contact which being in that position of trust presents.”[13]

[12][2018] VSCA 172

[13]Ibid at [1]

22The standard sentencing regime requires that a judge take into account the standard sentence as one of the factors of relevance in the overall sentencing exercise.  It is not determinative of the actual sentence which should be applied in every case.  The Court of Appeal stated in Brown v The Queen:[14]

“… the standard sentence provisions do not have any bearing on a judge’s obligation to assess the seriousness of the subject offence.  That assessment remains a necessary part of the process of instinctive synthesis and is not constrained by the legislative definition of ‘objective factors’.  Those constraints are referrable only to the assessment which give content to the hypothetical offence as an offence ‘in the middle of the range of seriousness.’”[15]

[14][2019] VSCA 286

[15]Ibid at [7]

23Additionally, your offending calls for you to be sentenced as a serious sexual offender on Charges 2 and 3 on the indictment following your conviction on Charge 1.[16] Section 6D of the Sentencing Act requires that the protection of the community be the principal purpose of sentencing in respect of those charges.  Section 6E requires that every term of imprisonment I impose upon you be served to some extent cumulatively, unless I otherwise direct.  Nevertheless, I must maintain the principle of totality and proportionality in respect of your actual offending and this must be given appropriate consideration.

[16]Section 6B(2)(a) Sentencing Act 1991

24I do accept the submissions made on your behalf by Ms Jones as to an absence of aggravating factors, which are often associated with offending of this type.  I accept that there was no real use of force and also that you ceased your sexual conduct when asked by your victim.  I also accept that the offending constituting Charge 3 involved no risk of pregnancy or transmission of a sexually transmitted disease.  The duration of the offending in relation to Charge 1 extends for a period in excess of three months, I do regard your offending in relation to that charge as mid-range offending.  In relation to Charge 2 involving a single act on one day which was ceased when your victim requested, this should be regarded as less than mid-range offending.  Similarly, Charge 3 involving digital penetration of the vagina, which again ceased when requested by your victim, should again be assessed as less than mid-range offending.

25I have taken into account the cases which were provided to me by counsel for the purposes of considering current sentencing practises.  Whilst I accept that current sentencing practises are one of the factors to be taken into account, the variation between the actual sentences imposed by sentencing judges, to which I have referred, clearly indicates that there are particular circumstances in each case which necessitate different weights to be given to those particular sentences in arriving at a sentence which fairly fits within the sentencing guidelines as being “just in all of the circumstances.”[17]  The particular cases that I regard as relevant from this court are DPP v Parker in 2020, DPP v Tringrove in 2020 and DPP v Murray in 2020.

[17]Sentencing Act 1991 s 5(1)(a)

26In your circumstances I also make mention of your plea of guilty during the time of the restrictions on the court due to the Covid-19 pandemic.  These matters were considered by the Court of Appeal in the case of Worboyes v The Queen.[18]   They are in my view relevant factors in the sentence I impose.

[18][2021] VSCA 169

27I therefore propose to pass sentence upon you:

28On Charge 1 of sexual assault, you will be convicted and sentenced to a term of imprisonment of four years.

29On Charge 2 and Charge 3 you are required to be sentenced in accordance with s6B(AC) of the Sentencing Act as a serious sexual offender.  In imposing sentence in respect of those two charges community protection becomes the primary sentencing purpose.  I am not satisfied in your case that it is necessary to impose a longer sentence than would otherwise be warranted to achieve this purpose.

30On Charge 2 again of sexual assault, you are convicted and sentenced to 3 years' imprisonment.

31On Charge 3 of sexual  penetration of a stepchild, you are convicted and sentenced to 7 years and 6 months' imprisonment.  (This is the base sentence).

32I further direct that 1 year of the sentence imposed on Charge 1 be served cumulatively upon Charge 3.  I further direct that 6 months of the sentence imposed in respect of Charge 2 be served cumulatively upon the base sentence and the sentence imposed for Charge 1.

33The total effective sentence I impose upon you is 9 years' imprisonment 

34I direct that you serve 5 years and 6 months before being eligible for parole.

35I declare that 255 days be served in pre-sentence detention be reckoned as a period of time already served under this sentence.  I direct that that pre-sentence detention of 255 days it be noted in the records of the court.

36I declare that you have been sentenced as a serious sexual offender in relation to Charges 2 & 3 and I further direct that this be noted in the records of the court.

37I further declare that you are to be registered, pursuant to s34(1)(c)(ii) of the Sex Offenders Registration Act 2004, and that that requirement remains for the remainder of your life.

38Pursuant to s 6AAA of the Sentencing Act, but for your plea of guilty the sentence that would have been imposed would have been of 12 years and 6 months' imprisonment with an eligibility for parole after serving 8 years of that sentence.

39Ms Malobabic, are there any further matters?

40MS MALOBABIC:  No, Your Honour.  There are no other matters to be raised by counsel.

41HIS HONOUR:  Ms Jones?

42MS JONES:  No, Your Honour, no other matters to be raised aside from the fact that I just note for the record that Your Honour's internet connection (indistinct) at times and if it's at all possible that a copy of Your Honour's sentencing remarks could be released to the parties?

43HIS HONOUR:  Yes, certainly.

44MS JONES:  I'm confident we heard all relevant portions but I would like to check that for Mr Waring’s benefit.

45VOICE:  It's frozen now, again.

46HIS HONOUR:  I am sorry, Ms Jones.  Ms Jones can you see and hear me now?

47MS JONES:  Yes, Your Honour, I can see and hear you.  I was just indicating for the record that there were some difficulties with Your Honour's connection.

48HIS HONOUR:  Yes.

49MS JONES:  And if Your Honour would be minded to release Your Honour's sentencing remarks to the parties for review, that would be most appreciated.

50HIS HONOUR:  Yes, I am prepared to do that and I will ask my associate to do so.  That will be done on the basis that they are unrevised at this stage.

51MS JONES:  Certainly.

52HIS HONOUR:  Given the difficulties with the internet, sadly, the copy I am reading from at the moment has got a couple of typing errors in it and I will perhaps ask my associate to correct those before they are released.

53Mr Waring, were you able to hear my sentencing remarks?

54OFFENDER:  Most of them, Your Honour.

55HIS HONOUR:  All right, I am going to release them to Ms Jones and Ms Malobabic and even if there are a couple of typing errors, it is important that Ms Jones is able to explain those matters to you and of course seek your instructions if my sentence is to be appealed, of course you've got rights to do that.  Thank you.

56OFFENDER:  Thank you for your time, Your Honour.

57HIS HONOUR:  Thank you, Mr Waring.  If there's nothing further, Ms Malobabic and Ms Jones, we'll try and see if those remarks can be sent to counsel but they'll be sent to counsel, of course, in an unrevised form just to assist you both in seeking further instructions at this stage.  Thank you.

58If there is nothing further at this stage, I will ask Ms Whelan to adjourn the court until 11.30.

59MS MALOBABIC:  No, there's nothing further, Your Honour.

60HIS HONOUR:  Thank you for your assistance, Ms Malobabic and Ms Jones and Mr Waring.

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