Director of Public Prosecutions v Watson
[2019] VCC 1270
•9 August 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-01236
CR-17-00414
CR-17-00415
Indictment No. F13860152.3
F13860152.4
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARK IVOR WATSON |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 16 May 2019 | |
DATE OF SENTENCE: | 9 August 2019 | |
CASE MAY BE CITED AS: | DPP v Watson | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1270 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence re Indictment No F13860152.3 where jury found offender guilty of nineteen historical sex offences; sentence re Indictment No F13860152.4 where offender pleaded guilty to four historical sex offences
Legislation Cited: Crimes Act 1958; s68(1) (as in operation between 1 April 1959 and 28 February 1981); s68(2) (as in operation between 1 April 1959 and 28 February 1981; s68(3) (as in operation between 1 April 1959 and 28 February 1981) and s68(3A) (as amended by the Crimes (Amendment) Act 1967); Sentencing Act 1991
Cases Cited:Kenny (a Pseudonym) v R [2018] VSCA 220; Bauer (a Pseudonym) v R (2015) 46 VR 382; Cheung v R [2001] 209 CLR 1; Stalio v R [2012] VSCA 120; DPP v Bales [2015] VSCA 261; Phillips v R [2012] VSCA 140; R v Rankin [2001] VSCA 158; R v Dunne [2003] VSCA 150; R v Reiner (1974) 8 SASR 102
Sentence: Total effective sentence (global) 15 years 7 months; non parole period of 10 years 6 months imprisonment; 149 days pre-sentence detention reckoned as time already served under this sentence; Serious Sexual Offender; Sex Offender Registration for Life.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J Piggott | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr J Dickinson QC with Mr R Tyssen | Cahill Legal Consultants |
HIS HONOUR:
Introduction
1 Mark Ivor Watson, on 13 March 2019, a jury delivered verdicts of guilty in respect of nineteen historical sex charges on Indictment F13860152.3. Furthermore, on 6 May 2019, you pleaded guilty to four historical sex charges on Indictment F13860152.4. These Reasons set out the sentence of the Court for such offending and also the Reasons for such sentence.
Procedural history
2 You are a sixty-seven-year-old (born 22 March 1952) man, who was charged on 16 November 2015 and committed for trial on 14 July 2016 in respect of a large number of historical sexual offences involving six complainants. A trial was initially listed on 29 May 2017, but then adjourned on application by those acting for you and refixed for hearing on 4 April 2018.
3 On 4 April 2018, counsel for the prosecution filed Indictment No F13860152. Such indictment alleged thirty-five separate sex offences against six complainants.
4 Pre-trial argument extended from 4 April 2018 to 17 May 2018 and involved a variety of Rulings.
5 On 18 April 2018, those acting for you sought a ruling that there be a permanent stay in relation to all of the charges on that Indictment. By way of a short-form Ruling given on 30 April 2018, the Court ruled that no charge on the Indictment would be permanently stayed. A written Ruling was delivered on 8 May 2018 (see DPP v Watson (Ruling No 3)). On 17 May 2018, counsel for you advised the Court that they had instructions to pursue an interlocutory appeal within the meaning of s.295 of the Criminal Procedure Act 2009. At that time, I certified that the interlocutory appeal was of sufficient importance in the trial to justify it being determined as an interlocutory matter.
6 The appeal was heard by the Court of Appeal on 16 August 2018, and on 31 August 2018, application for leave to appeal was refused (see Kenny (a Pseudonym) v R [2018] VSCA 220).
7 During the course of that application, Senior Counsel for the respondent made clear to the Court of Appeal that it was the intention of the prosecution to file over two new indictments, each involving three complainants (see Kenny (op cit) at paragraph [5]) in substitution for the single indictment. Such a course may well have been prompted by the then yet to be determined application by those acting for you, that the single indictment was “overloaded”, with reference being made to Bauer (a Pseudonym) v R (2015) 46 VR 382. Furthermore, in Kenny (op cit), Taylor AJA (with whom Priest and Weinberg JJA) agreed, make clear that the single indictment, as originally filed, was “overloaded” (See Kenny (op cit) at paragraph [11]).
8
Subsequent to the Court of Appeal decision, it was agreed that
pre-empanelment issues would be argued on 4 and 5 December 2018, with the hope that a jury could be empanelled on 29 January 2019.
9 On 4 December 2018, counsel on behalf of the prosecution filed over the following Indictments:
(a)Indictment No F13860152.1, which alleges nineteen separate historical sex offences involving three complainants, all of whom attended a Melbourne private school which had a boarding house (“the school”).
Such offences were alleged to have been committed over a period of approximately six years from 1972 to 1978. The offences involved thirteen charges of indecent assault upon a male person, five charges of buggery, and one charge of attempted buggery;
(b)Indictment No F13860152.2, which alleged six separate historical sex offences against three complainants.
Such offences were alleged to have been committed over a period of approximately three years between June 1982 and December 1985. The offences involved four charges of indecent assault and two charges of sexual penetration with a child between the ages of ten and sixteen years.
10 On 4 December 2018, I directed that you be partially arraigned. You pleaded not guilty to the first charge on each indictment. I was informed by your Senior Counsel that you denied each charge of sexual assault, denied any form of sexual attraction to the complainants and denied that you participated in any form of sexual activity with any of the complainants.
11 On 4 December 2018, your Senior Counsel referred to paragraph [80] of the Court of Appeal decision in Kenny (op cit), whereat it is recorded that Senior Counsel for the Crown submitted to the Court of Appeal that the prosecution would not gainsay any suggestion that you were employed for a single year by the School as a boarding-house master – that year being 1974.
12 Given that the concession by the prosecution that you were only employed by the school in 1974, it was submitted by your Senior Counsel that the charges in the “School Indictment” should plead any alleged offences occurred in 1974, rather than having general allegations between certain dates which extend over a far wider period.
13 The matter was the subject of further argument on 4 December 2018, prompting this Court to make a Ruling on 29 January 2019 (see DPP v Watson (Ruling No 8).
14 After making that ruling, counsel for the prosecution filed over Indictment No.F13860152.3 on 30 January 2019, which involved the same complainants, the same number of offences and the same type of offences as contained in Indictment F13860152.1. However, in relation to each offence, it was now pleaded to have occurred between the “first day of January 1974 and 31st day of December 1974”.
15 It is this indictment on which the jury returned verdicts of guilty in relation to the nineteen offences pleaded therein.
16 Following such guilty verdicts, the Court revoked your bail and remanded you in custody until 6 May 2019, when the trial involving Indictment No.F13860152.2 was to commence. On that day, the Court was informed that that matter had been resolved, which necessitated the filing of a further indictment, No.F13860152.4, containing four charges in relation to three complainants. On 6 May 2019, you pleaded guilty to each of the four charges and were remanded in custody until the plea date on 16 May 2019.
The circumstances of the offending
17 I will deal, first, with the charges relating to Indictment No.13860152.3, to which you pleaded not guilty before a jury of twelve. You stood your trial and the jury unanimously found you guilty of all nineteen charges on 13 March 2019. These charges relate to three victims, who I shall refer to as, “AJ” (a pseudonym), “MD” (a pseudonym), and “PR” (a pseudonym).
18 In sentencing you on this indictment, I am bound by the principles set out in the High Court case of Cheung v R [2001] 209 CLR 1. It is my responsibility to interpret the facts in a way that is consistent with the jury’s verdict. Your counsel did not resist the proposition that you fall to be sentenced upon the accounts given by the victims during the trial. I interpret the jury verdict as rejecting any suggestion by your counsel either through address or cross-examination that you did not sexually abuse any of the three victims and/or that the three victims were in some type of conspiracy to assert that you did sexually molest them.
19 Furthermore, I consider that although the recall of some of the victims was that they were sexually assaulted in a year other than 1974 was dealt with the jury as directed, it was a matter for them to consider whether, through the effluxion of time, the victims were wrong about the year that you committed the offences. In this respect, each of the victims attended the school for a number of years, but all attended during 1974. I am satisfied, beyond reasonable doubt, of the substance of the accounts given by the three victims.
20 AJ[1] was aged fourteen or fifteen at the time of the offending and is the victim in fourteen charges:
[1] A Pseudonym.
(a)Charge 1 – indecent assault: AJ lived with an aunt after the death of his adoptive parents when he was quite young. He was friends with a school boy who knew you. On a particular weekend, you met AJ for the first time, and the other school boy at Kew Junction in your car and then drove the other boy home, and also offered to drive AJ to his aunt’s place. During that trip home, AJ was sitting in the front seat of your car. You asked AJ whether he would like to be shown your parents’ house, which was not that far away. While driving to that house you put your hand in his lap and played with his penis and testicles, through his clothes, in the car, commenting that it was just a little bit of fun and that you would like to see his penis (that is an uncharged act).
When you arrived at your parents’ house, you took AJ to your bedroom and commenced to play with his penis and testicles through his clothes and then pulled down the front of his pants, exposing his penis, and played with that, and then pulled out your penis and played with yourself. AJ obtained an erection and you continued to masturbate AJ (Charge 1), and also masturbating yourself. AJ believes you ejaculated;
(b)Charge 2 – indecent assault: Probably a few weeks later, you again took AJ to your parents’ house and into your bedroom, closing the door. After that, you exposed AJ’s penis, and began masturbating him. While playing with AJ’s penis, you also played with yourself as well (uncharged acts). In particular, at that time, you introduced your finger into AJ’s anus, which took him by surprise and caused him some hurt (Charge 2);
(c)Charge 3 – indecent assault: There was another occasion when you attended your parents’ house and you queried AJ as to whether he had had oral sex and you put your penis into his mouth for a very brief period;
(d)Charge 4 – indecent assault: Shortly afterwards, both you and AJ had your trousers off, and you masturbated AJ and also played with yourself at the same time. In particular, you placed some type of lubricant on your finger and introduced your finger into AJ’s anus;
(e)Charge 5 – buggery: You also grabbed AJ’s hand and put some lubricant on his fingers and asked him to put his fingers in your anus (uncharged act). After putting AJ’s fingers in your backside, you turned him around and put him on a bed. You requested AJ to lie on you and put his penis in your anus, which he tried, but he was not very successful. AJ did not really know what he was doing and believes he probably went in and out a few times, but did not really know what he was doing, and it was brief;
(f)Charge 6 – buggery: After that, you turned AJ around and laid him on a towel, and then introduced your penis into the anus of AJ, and it hurt when you did that (Charge 6). You had anal sex in that house with AJ at least four different times (uncharged acts);
(g)Charge 7 – indecent assault: Sexual activity also occurred in your car. You took AJ to an area in Bulleen, where you told him that it was a frequenting spot for gay men to cruise. When you got to that spot, you stopped the car and you placed your hand down the pants of AJ, exposed his penis and testicles, and masturbated him, and you also exposed yourself and masturbated yourself as well;
(h)Charge 8 – indecent assault: On a second occasion in Bulleen, you pulled AJ’s penis out and masturbated him, and you also exposed yourself and masturbated yourself. This is the first time you took AJ’s hand and put it on your penis to masturbate you;
(i)Charge 9 – indecent assault: In another spot near the place in Bulleen, you parked the vehicle and you exposed AJ’s penis and masturbated him, and also exposed yourself and masturbated yourself. You took AJ to similar parks on about half-a-dozen times;
(j)Charge 10 – buggery: You would visit your aunt quite frequently in Mount Macedon, and you drove AJ to her place at Mount Macedon and went into her house and you both became naked. After masturbating AJ for a short occasion, you lubricated AJ’s penis and directed him to lay on top of you and place his penis into your anus;
(k)Charge 11 – indecent assault: You attended your aunt’s Mount Macedon property on another occasion with AJ and you went to a room in the house again. You were both naked and you lubricated a hand of AJ and placed your finger into his anus, asking that AJ do the same to you;
(l)Charge 12 – buggery: You then put your penis into the anus of AJ and wanted him to do that to you. You stated: “I’m teaching you. I’ll teach you how to do this.” AJ then placed his penis into your anus;
(m)Charge 13 – indecent assault: While travelling back from Mount Macedon with AJ, you pulled over to what you had described as a “beat”, which was a toilet block on the Calder Highway. You pulled in and drove to the other end of the little dirt road, exposed your penis and masturbated AJ;
(n)Charge 14 – indecent assault: You came to the home of AJ on a number of occasions, wanting to see the house. On one occasion, you came to the house when no-one was home and you wanted to see AJ’s bedroom and you had with you your little kit bag. In that bedroom, you fondled AJ, and then you asked him to put some lubricant on because you wanted him to place his fingers in your anus (uncharged acts). On that occasion, you went there to his aunt’s house and you masturbated each other.
21 MD[2], who was born in December 1961, was mostly twelve years of age at the time of the offending and is the victim in three charges:
(a)Charge 15 – indecent assault: You offered MD a lift home from the school in your car on one occasion and MD got into the car. MD had an erection, which you noticed, causing you to unzip his trousers, get out the erection and start to masturbate him until he ejaculated;
(b)Charge 16 – attempted buggery: Within a few weeks you offered MD a lift to your parents’ house, which was accepted. You drove to your parents’ house and when at that house, both you and MD walked upstairs to a single bedroom. In that room, you proceeded to undress to a naked state and encouraged MD to do the same. When undressed, you grabbed a Vaseline jar and proceeded to put Vaseline on your anus and over the erection of MD. You then lay on the bed, stomach down, and asked MD to get on the top of you to insert his erection into your anus. MD felt very uncomfortable with this and did not want to do it and proceeded to get up and get dressed. MD’s penis did not enter the anus, but was on your buttocks, causing MD to feel uncomfortable and very awkward;
(c)Charge 17 – indecent assault: You had befriended the parents of MD and invited MD to visit your aunt’s house in Mount Macedon. When driving to Mount Macedon, MD had an erection in his shorts, causing you to pull over to the side of the road, undo the zipper of MD’s pants and masturbate him until MD ejaculated.
[2] A pseudonym.
22 PR[3] was born in early 1963, which would make him eleven years old at the time of the offending and is the victim in two charges:
(a)Charge 18 – indecent assault: Although essentially a day boy at the school, PR went into the boarding house of the school for various periods – he believed about three times – when his mother was seriously ill. He met you when you were working in the boarding house. You drove PR to your parents’ house, where you took PR upstairs to a room where there was a single bed. You then hugged and kissed PR before proceeding to take his clothes off, and then you took your clothes off as well. When you were lying on the bed, you sucked the penis of PR with your mouth;
(b)Charge 19 – buggery: After being on the bed with PR, you and PR moved to the floor, with you putting lubricant on PR’s penis, and also some on your anus, and then directed that PR’s penis be put into your anus. Ultimately, PR ejaculated inside you. Later, you took PR back to your parents’ house, maybe half-a-dozen times, where similar activities occurred (uncharged acts).
[3] A pseudonym.
23 I now deal with the charges relating to Indictment 13860152.4. As I have already recorded, you pleaded guilty to each of the four charges on that indictment. These charges relate to three victims, “SJ”, “AM” and “JL”, who were not known to each other.
24 Counsel for the prosecution, at the plea hearing, tendered a document 'Summary of Prosecution Plea Hearing', dated 13 May 2019, which sets out the details of the offending (Exhibit 2). I set out some of the important matters in such prosecution summary.
25 SJ[4] lived with his parents in Toorak and in 1982, when he was about twelve years old, was doing odd jobs in the neighbourhood and earned some pocket money. On one occasion, he knocked on the door of a house in Toorak, and you answered, and after SJ enquired as to whether there were any jobs to be done, you introduced yourself and gave him a job gardening.
[4] A pseudonym
26 Shortly after, SJ commenced work at the property in Toorak, and when completed, you invited him in for a drink, and he found that although anxious at first, he was relaxed after having some conversation with you.
27 Although SJ cannot recall how it came about, he became friends with you, visiting your property, even in circumstances where he did not perform any paid work. SJ was interested in the topic of girls, and you and a friend raised such topic to a 'New level', ultimately leading to the suggestion that you would set up SJ with an older girl for the purpose of losing his virginity. You and your friend suggested that you knew a girl who would sleep with SJ.
28 On occasions, you and SJ would arm wrestle, and on occasions you started massaging the shoulders of SJ, which bothered him slightly. When you ceased massaging the shoulders, you kissed SJ on the back of the head.
29 A specific night was arranged for SJ to lose his virginity, and you requested SJ to come to your place for dinner and to stay the night, and to tell his parents that he was going to spend the night at a friend’s place. When he arrived no-one was home, and when you arrived two hours later, apologising for being late. You informed SJ that you were not going out that night.
30 SJ had his sleeping bag with him and intended to stay the night sleeping in the sleeping bag. You convinced SJ to sleep in your bed and he was in his underpants in your room. You also got into the bed, lying on the other side, when you enquired of SJ, 'Do you know what a head job is?' and SJ said he did not, but suspected it was something sexual. At that point, SJ heard a vehicle which sounded like his father’s car and made a comment to you that it sounded like his father’s car, causing you to appear nervous. You then told SJ it would be better if he slept in the front room, where SJ had laid out his sleeping bag.
31 About a week later, SJ again went to your house and the discussion turned to what had occurred the night that SJ stayed at your property. At some point in the conversation, you expressed doubts that SJ would be able to have sex with a girl, as his penis was not developed enough, to which SJ replied 'Of course it is', to which you responded, 'Prove it'.
32 You told SJ to go to the bathroom and get himself erect so that you could see the size of his penis. SJ went into the bathroom, pulled his pants and underwear down to his thighs, and was naked from his waist down, and got himself erect.
33 You appeared at the bathroom door and saw SJ naked from the waist and erect, and then told him 'Stay here', after which you left for about 20 seconds, and on coming back, you walked straight to SJ, gripped his left shoulder with your right hand and at the same time you used your left hand to masturbate SJ’s penis (Charge 1 – indecent assault ).
34 SJ saw what appeared to be cream on your hand, and you had a strong grip on SJ’s penis, causing SJ to freeze, have a hot flush and was getting embarrassed, and had an overwhelming sense that the behaviour was wrong.
35 You said words to the effect as to whether it was nice, to which SJ did not say anything, causing you to stop after a minute. SJ did not ejaculate.
36 AM[5], the second victim, was a student at a country high school in about 1984 to 1985, and aged thirteen to fourteen. He also wanted to make some extra pocket money and was given your name by a friend, knowing that at the time you were living in a house at Mount Macedon. You ultimately spoke to AM and gave him a job at your other residence in Toorak. AM recalls driving his bike to your house in Mount Macedon, after which you would drive him to the house in Toorak. At the house in Toorak, you showed AM the jobs in the rear yard that needed doing, and AM recalls that he was about then thirteen years old.
[5] A pseudonym.
37 You gave AM some work, including cutting the grass and some weeding, and AM also thinks that you gave him some beer to drink after he had finished, together with some food from McDonalds.
38 When at the house, you showed AM some pornography books, and later in the afternoon you drove AM back to Mount Macedon, where you gave him some 'Scotch', or something mixed with soft drink. AM does not recall how much he had to drink, although he recalls being drunk and it becoming late at night.
39 You put on a 'Porno' movie and told AM that he had had too much to drink and he could not ride his bike back home. You also told AM that he could sleep in your room and that you would sleep in the spare room. AM did not go into your bathroom, and you went into another bedroom. AM went to bed just in his T - shirt and jocks and fell asleep. He believes he had been asleep for a while when something woke him up and AM felt his penis being sucked (Charge 2 – sexual penetration with a child between 10 and 16 years). You were sucking AM’s penis and were in bed with him. AM was scared, and after a while you stopped sucking his penis and you told AM to have a shower. AM went to the bathroom, undressed and got into the shower, which had a glass screen. AM recalls you entering the bathroom and saw a flash of a camera, and believes that you were taking photographs of him while he was in the shower. You then took AM home.
40 In 1985, JL[6] was living with his family in Eaglehawk. The family had moved to Eaglehawk, and a man who lived in the house opposite offered to help them move into the house. Later, the man offered JL work around his workshop in his business. At that time JL was about thirteen years old and in Year 7 at school. JL began working for the man, who asked him over when things needed to be done. The man gave JL alcohol and JL went there about three or four times a week because he was permitted to drink alcohol there.
[6] A pseudonym.
41 After a few months of going to the man’s house, JL met you when you came to the man’s house and you told JL they would have to come and visit you at Mount Macedon, where you lived. On one night, JL was at the man’s premises drinking beer when you put your arms around his waist while he was standing. At that time, you were in the kitchen and you touched JL’s genitals and rubbed his body, after which you and JL moved to a bedroom.
42 When you went into the bedroom the door was shut and you pushed JL onto the bed on his back. You undid JL’s pants, taking off such pants and his Jockey shorts. You took off all of your clothes and then sat next to JL and masturbated him (Charge 3 – indecent assault ).
43 Three or four months later, the man living opposite informed JL that you wanted the man and JL to visit you in Mount Macedon. JL told his mother that he was staying at the man’s house overnight, and not that he was going to Mount Macedon.
44 When the other male and JL arrived at Mount Macedon, JL was given a beer and after about half-an-hour, the other male left, leaving you with JL. JL continued to drink alcohol and you kept offering him drinks. JL drank beer and scotch whiskey.
45 Whilst sitting on the couch next to JL, you started rubbing his legs and genitals and kept saying things to JL, 'Come on. Come on' – this went on for about an hour, until such time you said it was time for bed. You and JL went into the bedroom and while JL was standing, you undid his pants and pulled down JL’s pants and Jockey shorts. You started masturbating JL while JL was standing up and took off the rest of his clothes and got into bed. You took all of your clothes and got into bed next to JL.
46 You masturbated JL and put JL’s hand on your penis for JL to masturbate you. After a while, you stopped masturbating JL and went under the covers and started sucking JL’s penis, which went on for about two minutes before you told him to stop (Charge 4 – sexual penetration with a child aged between 10 and 16 years).
47 JL does not recall who ejaculated first but does recall that you both ejaculated.
The penalties for such offending
48 The law provides that the maximum penalty applicable to any offence is that, at the time of the offending, notwithstanding that those penalties may have increased over the years.
49 In relation to Indictment F13860152.3, the relevant penalties are:
(a)in relation to the offence of indecent assault on a male person, which applies to Charges 1, 2, 3, 4, 7, 8, 9, 11, 13 and 14 in respect of AJ, Charges 15 and 17 in respect of MD, and Charge 18 in respect of PR, the maximum penalty is five years’ imprisonment;
(b)in relation to the offence of buggery, which applies to Charges 5, 6, 10 and 12 in respect of AJ, the maximum penalty is fifteen years’ imprisonment;
(c)in relation to the offence of buggery with a person under 14 years of age which applies to Charge 19 in respect of PR, the maximum penalty is twenty years’ imprisonment;
(d)in relation to the offence of attempted buggery, which applies to Charge 16 in respect of MD, the maximum penalty is ten years’ imprisonment.
50 In relation to Indictment F13860152.4, the maximum penalties are:
(a)in relation to the offence of indecent assault, which applies to Charge 1 in respect of SJ and Charge 3 in respect of JL, the maximum penalty is five years’ imprisonment;
(b)in relation to the offence of sexual penetration of a child between the ages of ten and sixteen years, which applies to Charge 2 in respect of AM, and Charge 4 in respect of JL, the maximum penalty is ten years’ imprisonment.
Prior criminal record
51 You have no prior criminal record and, indeed, I was informed that you have no pending matters.
Victim Impact Statements
52 Each of the complainants or, as I have sometimes referred to them, the victims, provided what is called a Victim Impact Statement. They consist of:
·the statement of PR, declared on 9 May 2019, which was read to the Court by counsel for the prosecution;
·the statement of JL, declared on 9 May 2019, which was also read to the Court by counsel for the prosecution;
·the statement of AM, declared on 10 May 2019, which was also read to the court by counsel for the prosecution;
·the statement of MD, declared on 16 May 2019, which was also read out in court by MD;
·the statement of AJ, declared on 10 May 2019, which was also read out in court by AJ;
·the statement of SJ, declared on 16 May 2019, which was also read out in court by SJ.
53 I will refer to these statements later in this sentence.
Your personal circumstances
54 The following material was tendered by your counsel:
(a)a document headed 'Brief Outline of Submissions', dated 13 May 2019 (Exhibit 'A');
(b)a bundle of character references and testimonials from people, who in some cases, have known you for many years, and in some cases have entrusted their children to your care (Exhibit 'B'). Your counsel noted that such material goes to the prospects of your rehabilitation. In particular, such material consisted of references from the following:
(i)your present partner, Mr Wenze Fan, dated 1 May 2019. He describes first meeting you at Christmas time 2017, after which a friendship was created leading to a relationship. He describes you as a kind, nice person who is honest and considerate. He notes that although you have a lot of friends, you do not have many close family members, and for the last four years you have had to carry the legal problem yourself with not many people available to talk about the ongoing situation;
(ii)your cousin, Ms Laura Jocic, dated 25 April 2019. She describes having known you all her life, you being her mother’s first cousin. She notes that throughout her life, you have shown considerable care for her mother’s wellbeing. Furthermore, she notes that she is raising a son of her own and you have always been a very 'Understanding and supportive cousin'. She also notes that you regularly visit her mother in a nursing home and assist her greatly by helping her to medical and dental appointments. She notes that she has been aware of your 'Generosity towards others' and desire to be harmonious in your relationships;
(iii)an old school friend, Mr CC George, undated, whom you first met when attending secondary school and with whom you have had social dealings over the years. Mr George described himself as a semi-retired chartered accountant and his parents knew your parents so there was social entertaining between the two families. He asserts that you were the only child of 'Wonderful loving parents'. He also comments that you have been a 'Committed Christian and was a regular churchgoer'. Although there was a lengthy period after you left school where there was no contact, contact was remade at his father’s funeral and you have been enjoying each other’s company for regular monthly lunches ever since. He notes that after his wife passed away in tragic circumstances, you have been 'A constant support for me in the years following'. He finally notes that he has always found you to be 'Honest and straightforward (maybe a little pompous)';
(iv)Mr Robert Kelly dated 30 April 2019. He describes having known you for the last fifteen to twenty years of his life. He notes that you are an old friend of his mother’s and that you met him when you moved to Melbourne for secondary school in 2001. By 2002, you had become a weekly dinner guest and have remained a regular friend ever since. Mr Kelly notes that as a teenager, you were one of the more reliable of his parents’ friends and a positive role model when growing up. Over years, he notes that you have remained a valued friend who has always been true to your word, supportive, witty and an all-round great guy to have around;
(v)Mr David Eric Bower, dated 28 April 2019. Mr Bower notes that he first met you in 1963 when he was ten years old and a student at Carey Grammar School and you were in the same grade at Camberwell Grammar School and you came home the same way and became firm friends. He notes that you did not see much of each other as a result of Mr Bower moving back to New Zealand, but since 2014, the relationship has been to some extent resumed having seen you approximately four or five times over the ensuing years. Mr Bower records that his impressions of you are a person of 'Exemplary character'. Mr Bower notes that he believes that the same trait embodies his character and that you both have a shared belief in God and are practising Christians;
(vi)Mr R Hodges, dated 1 May 2019. Mr Hodges notes that he has known you for fifty-five years since his secondary school days and has always found you to be a 'Loyal, considerate and generous friend, displaying the utmost integrity'. In particular, he considers you to be a very thoughtful person, always putting others first before yourself and noting that when he faced serious health problems, you were always there to help and support whenever you could. He notes that you have served on a church council for many years with distinction and you are a highly regarded and a respected member of a large congregation. Furthermore, he describes you as having a wonderful sense of humour, and always great company and a fantastic friend;
(vii)Ms Edwina McLachlan, dated 1 May 2019. She describes meeting you approximately forty-three years ago, when she was nineteen, and you both shared a common group of friends and spent time in this friendship group. She then married and moved away from this group and did not see you for some years although the relationship has resumed in more recent times. She describes you as being 'Approachable, friendly, sincere, genuine and someone I can rely on and trust'. In particular, she notes that in 1996 and 1997, she and her husband entrusted you to move into their house to look after three children – boys then aged around twelve and ten and a daughter around seven – whilst her husband and she where away for a week or ten days interstate. She comments that she felt very comfortable leaving the children with you;
(viii)Mr KP Beecher, dated 23 April 2019. He notes that he has known you for more than twenty years and regards you as 'A true friend'. Your relationship has been on a social level and his family has spent summer holidays with you and you have been included in significant family events such as weddings, and Christian festivals such as Christmas and Easter. He describes you as being 'Polite, considerate and reliable and has at all times displayed a personal quality one admires'. He notes that you have a genuine Christian faith and regularly attend, as he and his wife do, services of the Anglican Church;
(ix)Ms Jane Morrell-Kelly, dated 26 April 2019. She states that she has known you for approximately forty-four years, having first met you at the age of eighteen or nineteen in 1975 or 1976. You played tennis regularly, in particular on Sunday mornings, followed by lunch. She notes that you have been a regular member at family dinners and special occasions over the years and have known her sons from their teenage years through to adulthood, and you are 'A much loved friend' to them. She asserts that you have always had a strong conviction of what is 'Right and wrong, good principles, and disapproving of unacceptable behaviour which is most probably partially contributed to by his upbringing and parents who he loved, admired and respected'. She describes you as 'A gentleman, very sociable with a great sense of humour and wit who would never be hurtful'. She also describes you as being 'An active member of the Christ Church congregation and has a strong belief in God and the role of the church with his only weakness being his sensitivity to what others think about him';
(x)Ms Mary H Connelly, dated 5 May 2019. She states that she has known you for about fifty years as a result of working for your father within the Department of Agriculture. She notes that over the years she has maintained an ongoing contact which has developed into a caring, trustworthy and honourable relationship today. She notes that she and you have been able to offer each other social friendship, supportive contact and moral support as a consequence of your long history connection. She notes that you have a positive quality in that you possess generosity of community spirit when visiting elderly family members and dear family friends at aged care facilities. Indeed, she notes how you would take your father out in a wheelchair when he was ill;
(xi)Mr Xavier George, dated 7 May 2019. He states that he first met you in 1996 when he was starting secondary school at Sacred Heart College in Kyneton and you were the head librarian at the school. He recalls you being well regarded both by him and other students, including his sister, at the school. Many years later, he ran into you in Melbourne after which you kept in touch, with him describing you as becoming somewhat of a 'Mentor' to him;
(xii)Mr Andrew Dixon, dated 9 May 2019. Mr Dixon states that he is a recently retired librarian who was situated at the Monash University library in Caulfield since 1986. He met you in 2004 through your cousin. After expressing an interest in employment at Monash University library at Caulfield, he notes you were successful in gaining employment there on an ongoing casual basis for about ten years until 2014, when hours of reference desk assistance were reduced. In particular, he notes that over the years up until now, he has caught up with you on a regular basis for a 'Sociable dinner'. He notes that he has always found you to be 'Respectful, considerate and amicable' in your dealings with others;
(xiii)Ms Deborah Melville, dated 21 June 2019. She states that she has known you for over four decades and describes you as 'A wonderful friend' whom she met at a tennis club in 1974. She describes you in particular as like being 'A big brother to me and a gentleman who has always been included in all my family social occasions'. She also notes she has found you to be honest and considerate with a great sense of humour. Also, she notes that her son and daughter, who are now both married, have always had a great rapport with you and been very fond of you;
(xiv)Mr Thomas Kelly, undated. He notes that he first met you in 2002 or 2003 in circumstances where you were an old friend of his mother’s when Mr Kelly was fifteen or sixteen. At that time, you became a regular dinner guest and friend of the family. He describes you as someone who is an 'Immensely likeable person, good company, funny and genuine'. Also, he asserts that you are a particularly kind person and such kindness has manifested itself in a number of ways. In particular, he refers to you assisting his mother to keep her company and supporting the people in your life. He notes that you have a 'Discreet but strong religious faith and is a regular member of the church'.
55 Partly on the basis of the material tendered, and partly on the basis of the various submissions made by your counsel, I note that you were adopted shortly after your birth on 22 March 1952. You were an only child. You were unaware of your adoption until later in life and your relationship with your adoptive parents deteriorated following that discovery.
56 Your adoptive father, Roger, worked in a senior role as an animal physiologist in the Agricultural Department and your mother, Helen, did some work, but was primarily involved in home duties. Both parents are deceased; your mother in 1993 and your father in 1999. You have little family, a ninety-five-year-old cousin who has an adoptive daughter.
57 You were educated at the Camberwell Grammar School until Year 12, which you completed in 1969, after which you studied for a Bachelor of Arts at the University of Tasmania in 1970.
58 In 1971, you worked for an accountancy firm in Melbourne, and later, over the years from 1972 to 1975, undertook a teaching degree at the Melbourne University.
59 On obtaining that qualification, you worked at the Epping High School from about 1976 until 1980, after which you did some teaching and librarian work in Brighton and in the Mount Macedon area. More recently, as already recorded, you worked as a librarian at the Monash University library from 2004 until 2014, when you retired.
60 You are qualified in music, librarianship and also are an accomplished singer and pianist.
61 You lived with your parents at their house in North Balwyn until 1979, after which you moved to Mount Macedon, when you inherited your aunt’s house situated there. That house was burnt down in the Ash Wednesday Bush Fires of 1983, and rebuilt in 1985-1986. You resided in Toorak until the house at Mount Macedon was rebuilt. In 1997, you purchased a unit in Brighton and have lived there since 1999.
62 Since being on remand, you have been in custody at the Hopkins Correctional Centre and are engaged as a library billet there. You reside in cottage accommodation with five other elderly prisoners.
63 Prior to your incarceration, you had entered into a relationship with your partner, Wenze Fan (who is one of your referees). Wenze Fan works as an insurance broker, and the relationship has been on foot for about eighteen months. You are visited regularly in gaol by Wenze Fan.
64 In regard to your health, you do have some prostate problems, and are awaiting an operation for this. Furthermore, you take medication for blood pressure and gout as required.
Offence, gravity and impact on victims
65 Initially, I refer to your offending, constituted by the nineteen offences pleaded on Indictment F13860152.3, all of which occurred in 1974. During that year, you were employed by the private school to be a boarding-house master. In return for your lodging and board, you were required to supervise members of the boarding house which you were in, pursuant to a roster, which required you to be there on certain nights and certain weekends. During this period, you were attending the Melbourne University to obtain a teaching qualification.
66 Your major role at the boarding house when on duty was generally to have knowledge, and sometimes written records, as to the coming and going of boarders from the boarding house, and in particular, to make sure everyone was in the boarding house by a certain time each night. Although you had no teaching role, you were referred to as a boarding-house master and mingled, not only with boarders, but other students at the school. In this sense, you were part of the private school and ultimately had a role in maintaining the well-being and protection of boys in the boarding house, in particular, but also generally, around the school.
67 During 1974, you turned 22 in March. The three school boys who were the subject of your offending were aged between 14 or 15 (AJ), 12 (MD) and 11 (PR). Because of the differences in ages and consequently, maturity, and bearing in mind that each of the victims viewed you in the context of being a boarding-house master of the school which the boys attended, you had substantial control over the victims. I consider the gravity of your offending in all the circumstances to be very high. Not only did the offending involve masturbation, it also included oral sex, fingers in the rectum, and perhaps the most significant being anal sex. When one considers the nature of such offending – again, particularly offending involving penetration – the objective gravity is manifest.
68 Furthermore, each of the victims was vulnerable – partly because of age, partly by their lack of maturity, and partly their family background – AJ being raised by an aunt, MD having little contact with his father and PR coming from a dysfunctional family and whose mother was chronically ill. Such vulnerability made them easy targets for your befriending and sexual abuse of them.
69 You also set out to develop friendships with the families of each of the victims which, in turn, engendered trust on their part, to allow you to take the victims in various drives to places, such as your parents’ place or your aunt’s place, where sexual offending occurred.
70 The extent of the offending was significant, noting the large number of charges, and it involved three complainants. I consider that you breached the trust that these boys had in you and also breached the trust of the school which employed you, and the parents of each of the victims.
71 One only has to read the Victim Impact Statements of AJ, MD and PR to understand that your offending has had a profound effect on the lives of each of them. It is difficult to adequately summarise the entirety of the Victim Impact Statements here, however, the overwhelming theme which comes through is the devastating and lasting impact of your offending has had on these men. Each of them have described a range of problems in their lives. Two of the statements relate to difficulties with intimate relationships.
72 In relation to the offending pleaded on Indictment No. 13860152.4, to which you pleaded guilty, that offending occurred over the period from approximately 1982 and 1985. During that period of time you were aged between 30 to 33 and your victims ranged from approximately 12 years old (SJ), 13 to 14 (AM) and 13 years old (JL). Again, there was a significant age difference and maturity between you, on the one hand, and your various victims. Two of the offences involved masturbation and two offences involved penetration by way of oral sex.
73 An aggravating feature of such offending was the method you employed by initially being prepared to employ each of your victims to perform work for you and, over time, developing a friendship involving you giving at least two of the victims alcohol and talking about sexual matters. I consider that the activities undertaken by you leading up to the offending amount to 'Grooming' of each of your victims for sexual exploitation by you – that is to say, to satisfy your sexual attraction to boys between approximately the age of 10 and 14.
74 I again refer to the Victim Impact Statements of SJ, AM and JL, wherein each of your victims describe, in different ways, how the sexual abuse has impacted on their lives in a devastating way. Again, two of these victims related ongoing relationship difficulties. Furthermore, two of the victims have required counselling to assist overcoming problems resulting from your offending.
75 It must be strongly borne in mind that your offending has had dramatic consequences on each of the complainants and, in most cases, such consequences continue to impact on their lives. I consider your offending is both objectively and subjectively of a high gravity and that your moral culpability is also significant.
Sentencing considerations
76 The principles of general deterrence, denunciation and just punishment are major factors when I come to consider your sentence.
77 The protection of children in our community is of great importance and, accordingly, any sentence in relation to any sexual offending involving children should play a role in generally deterring others from committing such offences, reflect the denunciation of the community of such offences, and just punishment. Specific deterrence can also play a role – that being a sentence which deters you specifically from committing similar offending. I will return to that issue shortly.
78 The seriousness of your offending demands that I convict you for each offence and impose a substantial period of imprisonment on you. In this respect, it is to be noted that a table of cases was provided to me by the prosecution as an aid to current sentencing practices, it was clear that neither party could make submissions about sentencing practices at the time of your offending, as they were markedly different to the sentencing practices today. In this respect, I refer generally to the matter of Stalio v R [2012] VSCA 120.
Serious sex offender provisions
79 Part 2A of the Sentencing Act 1991, which deals with 'Serious offenders' and, in particular, with 'Serious sexual offenders', provides that if an offender is sentenced to a term of imprisonment on two charges relating to sexual offending, any subsequent sentences involving sexual offences must involve the offender being sentenced as a 'Serious sexual offender'. This means that in relation to Charges 3 to 19 on Indictment No.F13860152.3, and Charges 1 to 4 on Indictment F13860152.4, you will be sentenced as a 'Serious sexual offender'.
80 Section 6D of the Sentencing Act 1991, provides that in sentencing any offender as a serious sexual offender, the court, in determining the length of that sentence, must regard the protection of the community as the principal purpose of sentencing and may, in order to achieve that purpose, impose a sentence longer than which is proportionate to the gravity of the offence, considered in the light of the objective circumstances. Counsel for the prosecution made clear that the prosecution did not seek a disproportionate sentence.
81 I do consider that, given your present age, the historical nature of the offending, and the lack of offending in the intervening years, you are not someone who poses a considerable risk of reoffending. Additionally, any risk which you pose today will be less, should you be released from prison. I do conclude that you are unlikely to reoffend should you live to be released from prison. Accordingly, I do not believe it is appropriate to order a disproportionate sentence.
82 Section 6E of the Sentencing Act 1991 contains a presumption of cumulation between charges when sentencing serious sexual offenders. As you fall into this category, I must consider the presumption when formulating your sentence. Any orders of cumulation must, however, be moderated to the extent necessary to give effect to the principle of totality (see DPP v Bales [2015] VSCA 261 at paragraphs [42]-[44]). The totality principle requires me to ensure that your sentence remains 'Just and appropriate' for the whole of your offending, even though I will be sentencing you to multiple terms of imprisonment, involving multiple victims. I also again refer to the Court of Appeal decision of Bales (op cit) where the court (consisting of Osborn, Kaye and McLeish JJA) stated at paragraph [44]:
'It is plain that the purpose of s.6E is to require an approach to sentencing which marks specific denunciation of each offence to which the section applies. This is particularly the case when the offending involves, as it does here, a number of different victims. The legislative policy inherent in s.6E is that the offences committed against individual victims will be separate and distinct subjects of punishment. This will generally involve orders for cumulation, moderated to the extent necessary to give effect to the principle of totality so far as that can be done consistently with the policy of the section.'
83 Section 6F of the Sentencing Act 1991 directs that a court which sentences a serious offender for a relevant offence must, at the time of doing so, cause such finding to be written in the records of the court in respect of that offence, the fact that the offender was sentenced for it as a serious offender.
Application of the Sex Offenders Registration Act 2004
84 Section 34(1)(c)(i) of the Sex Offenders Registration Act 2004 requires that a period of registration as a sexual offender is for life in circumstances where:
(a) the offender has been convicted of two or more Class 1 offences; or
(b)has been guilty of a Class 1 offence and one or more Class 2 offences; or
(c) has been found guilty of three or more Class 2 offences.
85 On Indictment No.F13860152.3, the Class 1 offences relate to Charges 2, 3, 4, 5, 6, 10, 11, 12, 16, 18 and 19 and the Class 2 offences relate to Charges 1, 7, 9, 13, 14, 15 and 17. On Indictment No.F13860152.4, the Class 1 offences are Charges 2 and 4 and the Class 2 offences are Charges 1 and 3.
86 In such circumstances, it is mandatory that you are to be registered as a sex offender for life pursuant to the Sex Offenders Registration Act 2004.
Mitigating factors relied on by your counsel
87 Your counsel made the following submissions in mitigation of any sentence:
88 The offences before the Court occurred between thirty-five and forty-five years ago and over time, since the offending, there has been no further offending of any nature. Given your age and the likely duration of the sentence for imprisonment, it was submitted that the sentencing consideration of specific deterrence should not be given any weight.
89 Counsel for the prosecution noted that there was no psychiatric or psychological evidence to support any proposition that you would not reoffend in the future. In all the circumstances, although accepting that specific deterrence was not as prominent in the sentencing matrix as general deterrence, it still has a role to play.
90 After considering the competing submissions, I do consider that the factor of specific deterrence is diminished because of matters raised by your counsel, but do consider it still plays a role, and I refer to what the Court stated earlier in determining that a disproportionate sentence was not required.
91 However, I do have a concern in relation to specific deterrence in that you have shown, in my view, no remorse whatsoever for your offending or, indeed, any insight into the nature of your offending and the consequences of it. In that sense, I consider specific deterrence does play a role, although, as I say, it is somewhat diminished.
92 Your counsel also made reference to your plea of guilty on 6 May 2019, in relation to the four charges pleaded on Indictment F13860152.4.
93 During the course of the plea, I was informed that there was an offer made in the week leading up to 6 May, and the matter was resolved on Friday, 3 May 2019. Of course, the resolution involved the number of charges being reduced from six to four.
94 Clearly, such plea is late, and after a committal hearing. However, consistent with the principles enunciated in Phillips v R [2012] VSCA 140, you are entitled to a less severe sentence than otherwise would have been imposed on the basis that such a plea, albeit late, did have the utilitarian value of avoiding a trial with its attendant cost of time and money and, more particularly, obviating the need for the victims of your offending to give evidence and relive the circumstances of such offending.
95 It is always a matter for the sentencing judge whether remorse or a willingness to facilitate the course of justice and acceptance of responsibility is to be inferred from a plea of guilty (again, see Phillips v R (op cit) at paragraph [96]). As I have already recorded, I consider that you have shown no remorse in relation to any of your offending, or a willingness to facilitate the course of justice and acceptance of responsibility. In particular, I note none of the references you have relied on and, significantly, including the one from your partner, makes any reference whatsoever to you having any remorse in relation to your offending, or any concerns about the victims of your offending.
96 During the course of your plea, there was a dispute as to the role, if any, to be played by what was referred to as 'Uncharged acts'. I understood the submission of your counsel that such 'Uncharged acts' can have 'No role to play', whereas counsel for the prosecution submitted that a sentencer may refer to 'Uncharged acts' so as to provide context for the offences on the Indictment or, in other words, so as to have regard to the full circumstances of the offence. Reference was made to R v Rankin [2001] VSCA 158 and R v Dunne [2003] VSCA 150). I consider that the submission of counsel to the prosecution to be correct, and also observe that 'Uncharged acts' negate, also, any submission that the offending was isolated conduct (in particular see R v Reiner (1974) 8 SASR 102 at [105]). Of course, a sentencer can only treat 'Uncharged acts' as facts adverse to you (that is, the circumstance of aggravation) if they are established beyond reasonable doubt.
97 In the circumstances of this matter, it must be remembered that the nineteen charges involving the three complainants in Indictment No.F13601152.3 – which contained the most allegations of 'Uncharged acts' – occurred over twelve months. It would be reasonable, even without the assistance of 'Uncharged acts', to view such offending as not being isolated offences. Certainly, given the number of offences over that period, and the number of complainants, there was no suggestion by your counsel, that this was isolated offending. I have come to the view that there was a large amount of offending in the relevant time and I take little heed of the 'Uncharged acts'.
98 Your counsel also submitted to the court, that you had no prior convictions at the time of the subject offending and, of course, there is no record of any offending, or anything pending, in relation to the last thirty-five years. I take this into account.
99 I do refer to the various references which I have summarised earlier in these Reasons for Sentence. Many of these references are from people who have known you for many years and, in certain cases, have entrusted their children to your care. It is clear that you are well liked by these people, who consider you responsible, good natured and having a good sense of humour. Many of them expressed surprise at the nature of your offending.
100 Based on those references, I do consider that, in your own way, you have attempted to help various people during your lifetime by way of moral and physical support.
101 Of course, the authors of these references did not have any appreciation of your other life involving the molesting of young boys and the frightful harm which you have caused by such offending. I do accept that other than your sexual attraction to young boys between the ages of 11 and 14, and your willingness to act on that sexual attraction, you have led, largely, a blameless life.
102 Your age is a relevant factor in some aspects of your sentencing. As I have pointed out, I consider that your chances of reoffending are low on your release from prison, based on a variety of factors, one of which would be your then age. Another factor is that each year you spend in custody will represent a substantial portion of your remaining life expectancy. I am conscious that the substantial term of imprisonment which I am about to impose upon you, carries a prospect that you may not live to be released from prison. Clearly, this is a terrible state of affairs for you and I take this matter into account.
103 While you currently have some medical problems, it can be expected, as you age into your seventies, your health will probably decline. I do accept that your advancing age, in time, is likely to make imprisonment more burdensome for you and I take that into account. I do note that although your counsel did identify some medical conditions that you suffer, your counsel did not seek to rely on any of the so-called principles enunciated in R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269. In sentencing you, I do note:
(a)Charges 3, 4, 5 and 6 on Indictment F13860152.3 all involve the same complainant, occurring on one occasion. In such circumstances, any cumulation will be particularly modest compared to other offending;
(b) similarly, Charges 11 and 12 on that indictment involve the same complainant, occurring on one occasion;
(c)given your plea of guilty in relation to the offences on Indictment No.F13860152.4, such sentences will be less because of the operation of s.6AAA of the Sentencing Act 1991.
Sentence
104 Please be upstanding. I sentence you as follows.
105 In relation to Indictment No.F13860152.3:
(a)in relation to Charge 1, involving indecent assault, you are convicted and sentenced to one-and-a-half years’ imprisonment;
(b)in relation to Charge 2, involving indecent assault, you are convicted and sentenced to two years’ imprisonment;
(c)in relation to Charge 3, involving indecent assault, you are convicted and sentenced to two years’ imprisonment;
(d)in relation to Charge 4, involving indecent assault, you are convicted and sentenced to two years’ imprisonment;
(e)in relation to Charge 5, involving buggery, you are convicted and sentenced to four years’ imprisonment;
(f)in relation to Charge 6, involving buggery, you are convicted and sentenced to four years’ imprisonment;
(g)in relation to Charge 7, involving indecent assault, you are convicted and sentenced to one-and-a-half years’ imprisonment;
(h)in relation to Charge 8, involving indecent assault, you are convicted and sentenced to one-and-a-half years’ imprisonment;
(i)in relation to Charge 9, involving indecent assault, you are convicted and sentenced to one-and-a-half years’ imprisonment;
(j)in relation to Charge 10, involving buggery, you are convicted and sentenced to four years’ imprisonment;
(k)in relation to Charge 11, involving indecent assault, you are convicted and sentenced to two years’ imprisonment;
(l)in relation to Charge 12, involving buggery, you are convicted and sentenced to four years’ imprisonment;
(m)in relation to Charge 13, involving indecent assault, you are convicted and sentenced to one-and-a-half years’ imprisonment;
(n)in relation to Charge 14, involving indecent assault, you are convicted and sentenced to one-and-a-half years’ imprisonment;
(o)in relation to Charge 15, involving indecent assault, you are convicted and sentenced to one-and-a-half years’ imprisonment;
(p)in relation to Charge 16, involving attempted buggery, you are convicted and sentenced to three years’ imprisonment;
(q)in relation to Charge 17, indecent assault, you are convicted and sentenced to one-and-a-half years’ imprisonment;
(r)in relation to Charge 18, indecent assault, you are convicted and sentenced to two years’ imprisonment;
(s)in relation to Charge 19, in relation to buggery, you are convicted and sentenced to five years’ imprisonment. Such sentence is the base sentence.
106 I direct that three months of the sentence in relation to Charge 1, four months of the sentence in relation to Charge 2, three months of the sentence in relation to Charge 3, three months of the sentence in relation to Charge 4, six months of the sentence in relation to Charge 5, twelve months of the sentence in relation to Charge 6, three months of the sentence in relation to Charge 7, three months of the sentence in relation in Charge 8, three months of the sentence in relation to Charge 9, twelve months of the sentence in relation to Charge 10, three months of the sentence in relation to Charge 11, twelve months of the sentence in relation to Charge 12, three months of the sentence in relation to Charge 13; three months of the sentence in relation to Charge 14; three months of the sentence in relation to Charge 15; nine months of the sentence in relation to Charge 16, three months of the sentence in relation to Charge 17 and three months of the sentence in relation to Charge 18, are to be served cumulatively upon each other and upon the sentence imposed in relation to Charge 19. The total effective sentence is twelve years and seven months.
107 In relation to Indictment No.F13860152.4 I order:
(a)Charge 1, in relation to indecent assault, you are convicted and sentenced to one year’s imprisonment;
(b)Charge 2, in relation to sexual penetration of a child between 10 and 16, you are convicted and sentenced to three-and-a-half years’ imprisonment, this is the base sentence;
(c)Charge 3, in relation to indecent assault, you are convicted and sentenced to one year’s imprisonment;
(d)Charge 4, in relation to sexual penetration of a child between 10 and 16, you are sentenced to three years’ imprisonment.
(e)I direct that three months of the sentence in relation to Charge 1, three months of the sentence in relation to Charge 3 and nine months of the sentence in relation to Charge 4, be served cumulatively upon each other and upon the sentence imposed in relation to Charge 2. The total effective sentence is four years and nine months;
(f)I further order that three years of the total effective sentence in relation to Indictment F13860152.4 be cumulated with the total effective sentence in relation to Indictment No.F13860152.3. The new total effective sentence is fifteen years and seven months, and I order a non- parole period of ten years and six months.
108
I declare that you have served up to, but not including this day, 149 days in
pre-sentence detention and such period should be administratively deducted from the sentence ordered against you.
109 I grant the application made by counsel for the prosecution for a forensic sample.
110 Pursuant to s.6AAA of the Sentencing Act 1991, I declare that save for your pleas of guilty on Indictment No.F138601152.4, I would have sentenced you to six years and two months imprisonment.
111 Pursuant to the provisions of the Sex Offenders Registration Act 2004, and bearing in mind the nature of the offences, I order pursuant to s.34(1)(c)(ii) of the Sex Offenders Registration Act 2004, your name to be entered on the Register of Sex Offenders, with the length of the reporting period being the remainder of your life.
112 I also declare that you have been convicted and sentenced as a serious sexual offender pursuant to the provisions of the Sentencing Act 1991 in relation to Charges 3 to 19 on Indictment No.F13860152.3 and in relation to Charges 1 to 4 on Indictment No. F13860152.4.
113 Yes. Do counsel want to raise anything?
114 MS PIGGOTT: No, Your Honour.
115 MR THYSSEN: No, Your Honour.
116 HIS HONOUR: Look, I think the cumulation is right but I would be very happy if you both do it.
117 MR THYSSEN: Your Honour, I would just request a transcript of the sentence, Your Honour.
118 HIS HONOUR: Yes. Well, I would like to revise it.
119 MR THYSSEN: Yes, Your Honour.
120 HIS HONOUR: Is there any great urgency?
121 MR THYSSEN: No.
122 HIS HONOUR: I certainly would get it to you as quickly as we can, but I want it revised.
123 MR THYSSEN: Yes, Your Honour.
124 HIS HONOUR: Yes. Is there any family of the offender here, right now?
125 MR THYSSEN: No, Your Honour.
126 HIS HONOUR: Does anyone in particular wish to approach the offender? A friend?
127 MR THYSSEN: Mr Fan is here, Your Honour.
128 HIS HONOUR: I just know there will not be any contact downstairs.
129 MR THYSSEN: Yes, Your Honour.
130 HIS HONOUR: I will allow him to approach the offender, if he so chooses.
131 MR THYSSEN: Yes, Your Honour.
132 HIS HONOUR: So, you want to do that now?
133 MR THYSSEN: Yes, Your Honour.
134 HIS HONOUR: Just for a short while, Mr Fan. One thing I perhaps should have added, and I will make clear now, it is almost always the case there is anonymity in relation to the complainants. So, I hope none of the complainants, who I know some are here today, have taken any offence by a reference to a pseudonym. That is common and indeed, sensibly it is for your own protection. Yes, very well. Take the prisoner.
135 (At this stage the accused left the court.)
136 Yes. We will adjourn.
- - -
Indictment F13860152.3 (Trial)
| CHARGE | VICTIM | OFFENCE | MAXIMUM | SSO OFFENCE | SENTENCE | CUMULATION |
| 1 | AJ | Indecent Assault s 68(3A) | 5 years | No | 18 months | 3 months |
| 2 | AJ | Indecent Assault s 68(3A) | 5 years | No | 2 years | 4 months |
| 3 | AJ | Indecent Assault s 68(3A) | 5 years | Yes | 2 years | 3 months |
| 4 | AJ | Indecent Assault s 68(3A) | 5 years | Yes | 2 years | 3 months |
| 5 | AJ | Buggery s 68(2) | 15 years | Yes | 4 years | 6 months |
| 6 | AJ | Buggery s 68(2) | 15 years | Yes | 4 years | 12 months |
| 7 | AJ | Indecent Assault s 68(3A) | 5 years | Yes | 18 months | 3 months |
| 8 | AJ | Indecent Assault s 68(3A) | 5 years | Yes | 18 months | 3 months |
| 9 | AJ | Indecent Assault s 68(3A) | 5 years | Yes | 18 months | 3 months |
| 10 | AJ | Buggery s 68(2) | 15 years | Yes | 4 years | 12 months |
| 11 | AJ | Indecent Assault s 68(3A) | 5 years | Yes | 2 years | 3 months |
| 12 | AJ | Buggery s 68(2) | 15 years | Yes | 4 years | 12 months |
| 13 | AJ | Indecent Assault s 68(3A) | 5 years | Yes | 18 months | 3 months |
| 14 | AJ | Indecent Assault s 68(3A) | 5 years | Yes | 18 months | 3 months |
| 15 | MD | Indecent Assault s 68(3A) | 5 years | Yes | 18 months | 3 months |
| 16 | MD | Attempted Buggery s 68(3) | 10 years | Yes | 3 years | 9 months |
| 17 | MD | Indecent Assault s 68(3A) | 5 years | Yes | 18 months | 3 months |
| 18 | PR | Indecent Assault s 68(3A) | 5 years | Yes | 2 years | 3 months |
| 19 | PR | Buggery s 68(2) | 20 years | Yes | 5 years | Base sentence |
| TOTAL EFFECTIVE SENTENCE 12 YEARS 7 MONTHS IMPRISONMENT |
Indictment F13860152.4 (Plea)
| CHARGE | VICTIM | OFFENCE | MAXIMUM | SSO OFFENCE | SENTENCE | CUMULATION |
| 1 | SJ | Indecent Assault s 44(1) | 5 years | Yes | 1 year | 3 months |
| 2 | AM | Sexual penetration of a child between 10-16 s 48(1) | 10 years | Yes | 3.5 years | Base sentence |
| 3 | JL | Indecent assault s 44(1) | 5 years | Yes | 1 years | 3 months |
| 4 | JL | Sexual penetration of a child between 10-16 s 48 | 10 years | Yes | 3 years | 9 months |
| TOTAL EFFECTIVE SENTENCE 4 YEARS 9 MONTHS IMPRISONMENT |
| GLOBAL SUMMARY Direct that 3 years of the sentence imposed upon Indictment F13860152.4 be served cumulatively upon Indictment F13860152.3 |
| TOTAL EFFECTIVE SENTENCE (GLOBAL) | 15 years 7 months |
| NON PAROLE PERIOD | 10 years 6 months |
| PRE-SENTENCE DETENTION | 149 days |
| OTHER RELEVANT MATTERS | Forensic sample order Sentenced as a Serious Sexual Offender on charges 3-9 (F13860152.3) and charges 1-4 (F13860152.4) Sex Offender Registration for Life. |
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