Director of Public Prosecutions v Weller
[2018] VCC 2247
•14 December 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-00435
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| EDWARD WELLER |
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JUDGE: | Her Honour Judge M. Sexton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27-28 February, 6-9, 13-15 March 2018 for trial | |
DATE OF SENTENCE: | 14 December 2018 | |
CASE MAY BE CITED AS: | DPP v WELLER | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 2247 | |
REASONS FOR SENTENCE
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Subject: Criminal Law – Sexual Offences
Catchwords: Sexual penetration of a child under 16 – committing an indecent act on a child under 16
Legislation Cited:
Cases Cited:R v Clarkson (2011) 32 VR 361 – Adamson v R [2015] VSCA 194 – DPP v Walsh [2018] 172 – Burgess v R [2017] VSCA 59 – HMcL v R (2000) 174 ALR 1 – DPP v Toomey [2006] VSCA 90
Sentence: TES – 6 years imprisonment with a minimum of 3 years 6 months before becoming eligible for parole.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M. Fisher for trial and 24 May hearing Mr L. Cameron for plea | OPP |
| For the Accused | Miss M. Mahady for trial and 24 May hearing Ms S. Lacy for plea | Lethbridges Solicitors |
HER HONOUR:
Introduction
1 Edward Weller, on 15 March 2018, a jury found you guilty of sexual penetration of a child under 16 and of committing an indecent act on a child under 16. At the same trial, you were found not guilty of three sexual offences alleged by another complainant.[1]
[1] Indictment E13803444.4 Verdict – Not guilty on charges 1, 2 and 3; Guilty on charges 4 and 5.
2 Your plea was originally listed on 24 May, but was adjourned on your application to 18 July.
3 You continue to deny the offences[2]. For me to sentence you in accordance with law, it is necessary for me to outline the basis on which the jury found you guilty.
[2] Exhibit 2 – Psychological Report dated 30 June 2018
The offending
4 In 1998-99, you had separated from a partner, but her daughter came to stay with you on occasions. I will describe her as your step-daughter. One day, sometime between January 1998 and August 1999, your step-daughter brought a friend home after school. I will refer to that friend as FJ, in order to preserve her anonymity as required by law[3]. FJ was aged 14. She had never been to your house before, and did not return after that day. While the two girls were watching TV, you provided them with alcohol. FJ said she liked it, so kept drinking it and ‘sculled’ 2 - 3 glasses.
[3] Section 4 Judicial Proceedings Reports Act
5 You then invited them into your room to watch TV, and although FJ did not want to go, she was convinced to do so by her friend. There was a conflict in the evidence as to whether the friend, your step-daughter, was in the room with you and FJ, which FJ asserted, or whether your step-daughter remained in the lounge room, as your step-daughter maintained in her evidence. As the prosecution submit that the offending which then occurred was in the presence of your step-daughter, it follows that their submission is that I accept FJ’s evidence about that. Given that the jury rejected the step-daughter’s evidence of offending she alleged you committed against her, where her evidence is in conflict with that of FJ, I will act on the basis of FJ’s evidence. I am satisfied to the requisite standard that the step-daughter was present in your bedroom.
6 With the three of you on the bed, you felt FJ’s leg, but she said she did not take much notice. Then, according to her VARE[4], you ‘ripped [her] clothes off, shoved [your] penis in [her] vagina’[5] and sexually penetrated her for about 30 minutes. She describes herself as being dopey and not able to get enough strength to get up, so she just laid there. At the time of her VARE, she thought that was because she was “really, really paranoid and scared”. I find it likely that she was also affected by the alcohol. FJ did not know if you ejaculated, and there is no evidence as to whether or not you wore a condom.
[4] Video and Audio Recorded Evidence (known as Video and Taped Evidence in 1999)
[5] VARE Answer 25
7 The sexual penetration is the subject of Charge 4, which, at the time of the offending, had a maximum sentence of 10 years’ imprisonment.
8 You were trying to kiss FJ on the mouth, and she was moving her head away. You pulled her top up, kissed her stomach and kissed and rubbed her breasts for about fifteen minutes. That touching of her breasts is the subject of Charge 5, which, at the time of the offending, also had a maximum sentence of 10 years’ imprisonment.
9 FJ eventually got away from under you, and left the bedroom. She wanted to go home, but had to wait for some hours before, according to her, you drove both girls back to your former partner’s house. The following morning, you came back to that house, and came into the bedroom where the two girls were in bed. You threw or flicked $200 at FJ, and asked her to give you a kiss. She tried to ignore you and pretended to be asleep, rolling over away from you.
Chronology of events
10 It is appropriate to continue with the chronology and return later to my assessment of the seriousness of your offending. FJ gave evidence that at the age of 14, while she loved her parents, there were some issues between her and them. In July 1999, she and two friends absconded from their homes and the Department of Health and Human Services became involved. FJ and her friends were apprehended under a Protection Warrant and taken to the Children’s Court. While waiting there, what FJ was saying to her friend was overheard by a worker, who asked FJ questions, as a result of which she told the worker of your offending against her.
11 This information was provided to the police and on 17 August 1999, FJ made her VARE, which formed the bulk of her evidence in chief in the trials held in 2017 and 2018. She said the offending occurred a few months earlier than the VARE. Your step-daughter was spoken to by police, but denied witnessing any offending against FJ. An investigation was conducted, including a police interview with you in December 1999 where you denied committing the offences. Later, the police were unable to locate this first interview. The police did not proceed with FJ’s allegations. I accept that as at 2000, you would have thought that the matter was not going to be taken any further.
12 Twelve years passed, and in January 2012, your former step-daughter made a statement to police alleging you had sexually offended against her. As I said at the outset, you were found not guilty by the jury in respect of the charges relating to her. Police contacted FJ and in July 2012, she made a statement adopting her VARE as being accurate, with the exception of corrections which she made. You were re-interviewed two weeks later, and denied all the alleged offending against both girls.
13
For reasons which have not been explained, charges were not issued until
31 October 2014, a delay of nearly two years. The committal took place in April 2015, and the first trial date was set for May 2016. From my knowledge of the listing of trials in this court, I can say that twelve months from committal to trial is common, when there is no child witness nor an accused in custody, which was the situation here. However, the first trial date was vacated, as both complainants, your former step-daughter and FJ, were pregnant. A trial was held in February 2017, where you were acquitted on three other charges, but the jury were unable to agree on the balance. The trial held in February and March this year was the third trial listing and second full trial. There has been a further delay of five months from your plea to sentence, due to the workload of this court.
14 The prosecution conceded that delay is a relevant matter for me to take into account. I will come back to this, but I accept that for twelve years you thought no case would be brought, and since you were re-interviewed, there has been a further considerable delay of six years in reaching a finalisation today. However, there are other matters to consider about the time since the offending occurred, and I will return to this aspect later in my reasons.
Impact on the victim
15 I turn now to the Impact Statement provided by FJ.[6] When it comes to children, it is presumed that they suffer harm from a sexual offence being committed against them. The harm can be long term and serious, and both physical and psychological[7], and include future harm[8]. As I will come back to, this harm is something of which you are well aware from your own experience.
[6] Exhibit 2
[7]R v Clarkson (2011) 32 VR 361, 368 [26], 371 [33]
[8]Adamson v R [2015] VSCA 194, [56]
16 FJ has suffered harm in almost all of these ways. She has set out in a very powerful way the terrible impact your offending had on her. As I mentioned earlier, at the time of the offending committed against her she was 14, and dealing with issues at home. Following your sexual attack on her, when the police did not proceed with her allegations she felt no-one believed her, she left school, "went off the rails", felt worthless and felt she did not have a future except giving sexual favours to men. Because of your criminal treatment of her, she felt she did not have the right to say no, her self-esteem was low, and she described finding herself in very dangerous and vulnerable positions. She had ongoing mental health and substance abuse issues, and this led to her losing her family, including her children, being unable to form trusting relationships, and being surrounded only by drug users and criminals. Her statement provides a clear picture of the years of trauma she has suffered since your offending. She also felt re-traumatised by the court process, feeling not believed again.
17 However, she now feels that "finally, someone believed her" and that feeling has helped her move on with her life. It is pleasing to hear that despite the long term impact on her, she has stopped all substance abuse, has her children back with her, and has a supportive and loving partner. The last line of her statement is that she looks forward to a happy life. I want to say something directly to her. Her words show that she is a brave, resilient person, whose life in future will not be defined by what happened to her at the age of 14. The crimes committed against her will always be there, but she has shown that she has the strength to move forward and with such a positive attitude, and surrounded now by her loving family, her children and partner, her life can indeed be a happy one. I wish her well for the future. I do take very much into account her impact statement in deciding the appropriate sentence.
Assessment of the offending
18 The features that I take into account in assessing the gravity of your offending, and which are agreed by the parties are:
· First, the impact on FJ, as I have just outlined;
· Next, the thirty-five year age difference between you and her;
· Next, the power imbalance arising from that age difference and your position as her friend’s stepfather, in a house she was visiting for the first time and which she could not leave without someone driving her;
· Next, the breach of trust arising from those circumstances; and
· Lastly, the provision of alcohol.
19 The following features are disputed. After hearing submissions I am satisfied as follows:
· First, the fact (as I have found) that another person was present in the room, on the bed, while you committed the offences is a feature that makes your offending more serious;
· Next, giving $200 to FJ the following day, carried the implication that she was being paid off, and this was indeed the impression left with FJ, such that she gave different information about the amount of money and what she did with it when speaking to police as a 14 year old, fearful that it would otherwise look like she had received the money for rendering sexual services;
· The impact on her was the greater because of that payment of money, as can be seen from what she said in her Impact Statement; and
· It is open to conclude that you were trying to buy her silence.
20 I find that the offending in Charge 4 involved forceful penetration beyond the inherent violence involved in such an act on a child[9], but accept that there was no non-sexual violence. I also find that the offences were not of the shortest duration, at an estimated total of thirty to forty-five minutes, but obviously did not involve offending over hours or days. The two offences occurred together in the one episode of sexual activity, and I accept that the offending was opportunistic, occurring on the one occasion that FJ came into your domain, when no one other than your step-daughter was present in the house.
[9]DPP v Walsh [2018] VSCA 172
21 Taking all these features into account, I assess your offending as very serious, and your moral culpability as high.
Other factors to consider
Remorse
22 In determining the appropriate sentence, there are other relevant factors for me to consider. The first of these is that as you pleaded not guilty and continue to deny the offences, there is no remorse as a mitigating factor, and you do not receive the almost inevitable benefit that accrues to a person who has pleaded guilty[10].
[10]Burgess v R [2017] VSCA 59 , [37]
Criminal history
23 Next, you have a relevant, serious criminal history. In February 1981, you pleaded guilty to four charges of incest and two charges of indecent assault committed against two of your biological daughters, aged 10 and 12. The incest involved penile-vaginal penetration of the 10 year old. You were sentenced to what can only be described as merciful sentences of 12 months’ imprisonment on the incest charges, which carried a maximum of 25 years, and received a total sentence of two years’ imprisonment with a non-parole period of just four months. I have read the confessional statement you made to police[11] and in my view, you minimised the offending and showed a lack of insight.
[11] Exhibit C
24 Of course, you are not to be sentenced today for that offending, but it is highly relevant to today’s sentence that you have committed such serious sexual offences against children previously, because of the questions the offending in 1976 to 1980 raises about your prospects of full rehabilitation, and the context in which the passage of time between the offending in 1999 and today’s sentence is to be considered. I will come back to this.
Personal circumstances and background
25 It is necessary to take into account your personal circumstances and background to consider these questions further. You are now aged 77 years. You were born in the UK, fourth of ten children. Your father was a heavy drinker and violent to your mother. He sexually abused you from the ages of eight to 13 years, something that you were only able to report for the first time in May this year. As is now recognised as common, you did not tell anyone, until nearly 70 years later when your counsel was discussing your background with you in preparation for your plea. That disclosure led to the adjournment in May for the purpose of obtaining a psychological report, presumably to provide information as to the impact on you of that abuse. I will return to this topic.
26 Your mother died of cancer when you were 14, and the family was split, with many of your younger siblings being sent to relatives. You left school at that age, being able to read, but not to write. You worked as a farm hand before joining the Merchant Navy at 16. You worked as a ship’s steward for three years until you deserted in Sydney and were dishonourably discharged. A charge of deserting ship is your first conviction; you committed dishonesty offences in 1962 and "street" offences in 1970. These minor and aged convictions, and those from 1981, which I previously referred to, constitute your full criminal history. You never returned to England, and have had no contact with your family since you left at age 16.
27 In Australia, you became an Australian citizen and have had a full working life, beginning in manual work, and then after moving to Melbourne, you became a delivery driver, including working for a bakery for eighteen years before becoming an owner driver. You were still doing this work, at the age of 76, when you were remanded after your trial. Given your difficult childhood and poor education, this work history is a considerable achievement. However, while I take into account that you have been a contributing member of society in your employment for a long period of time, and provided income to three families over that time as I will next describe, I bear in mind that your previous sexual offending occurred during this period.
Relationships
28 You first married at age 19, and had a son; the marriage only lasted two years. Next, you were in a relationship with a woman for fifteen years, and during your 20s and 30s, you conceived eight children together. The youngest child was aged eight when your wife died from cancer. It was two of your daughters in this family that you abused. You have no contact with any of your children, and given the sexual abuse you perpetrated in your second family, that is no surprise. Next, you lived with the woman who is the mother of the female I have referred to as your step-daughter, the friend of FJ. That woman had four children from an earlier relationship. Your relationship with her lasted about thirteen years.
29
You are now in your longest relationship, currently nineteen years, with
Ms Hunter. She gave evidence in the defence case in your trial, has attended court on every occasion your case has been listed, continues to support you and makes the long trip to Ararat to visit you every week in prison. It was submitted on your behalf that this long term, committed relationship is a factor that will make it less likely that you will reoffend.
30 The prosecution submitted that you have been in long term relationships in the past, but this did not prevent you from offending. It was pointed out that your first sexual offences, against your daughters, occurred while in a long term relationship with their mother. In the psychological report which I will turn to shortly, it was reported that you remained with their mother after the offending came to light, but separated later.
31 I accept that Ms Hunter provides you with solid support and a committed relationship. According to her evidence at the trial, you have been in your relationship for nineteen years. I note that there are no children in the household you shared with Ms Hunter before you went into custody, so that opportunistic offending in future will be less likely. Further, you have not offended again since 1999. On the other hand, as the prosecutor submitted, you have committed serious sexual offending while in a long term relationship.
Delay
32 Your previous sexual offending occurred in 1976 to 1980, assuming that the charges for which you were sentenced related to your confessional statement. The prosecutor told me that there is no other information now available about those charges. You were then aged 35 to 39 years. It follows that there is a gap in time of nineteen to twenty-two years before you offended again at the age of about 64 years against FJ. Usually, an increase in age is associated with a decreased risk of reoffending.
33 I went through the chronology of events earlier. It is submitted on your behalf that the period of nineteen years since the offences against FJ occurred, is a delay that is not of your making, and that the delay should therefore be taken into account in your favour on the following bases: the delay is relevant to your rehabilitation, as you have not re-offended in that time; it should be recognised that you had the allegations "hanging over your head" for that lengthy period; and I should take into account as part of the sentencing process the sentence that you would have received if the matter had been dealt with in 1999, when FJ first reported the crimes to police, rather than in 2018.
34 The prosecutor conceded that the delay was relevant to take into account, but submitted that I should not find that you have rehabilitated in that time, given that your history shows that you have reoffended after a lengthy period of not offending.
Own sexual abuse
35 It was also submitted on your behalf that the sexual abuse perpetrated on you as a child was a factor to take into account in mitigation, on the basis that for you, it normalised sexual behaviour between children and adults and so provided an explanation, but not an excuse, for your offences. It was also submitted that because you had failed to deal with the trauma from your own abuse, that had left no room for you to have insight into the abuse you went on to perpetrate.
36
I received a report from Carla Lechner[12], forensic psychologist, which was provided after the plea was adjourned for that purpose, following your disclosure for the first time of sexual abuse by your father. You provided
Ms Lechner with the details that the abuse happened between the ages of eight and 13, occurred at least once a month, and included anal penetration. You said you would prefer not to speak of it again, even in a therapeutic context, because of the distress it causes you.
[12] Exhibit 2
37 Ms Lechner did not refer to, or express an opinion about, your sexual abuse as potentially normalising sexual behaviour between adults and children and so providing an explanation for your offending. Therefore there is no evidence before me as to that.
38 However, she did say that you presented as emotionally constrained and struggling with intimacy and trust. She considered that your formative years were marred by chronic sexual abuse perpetrated by your father, and your mother’s death from cancer. In her summary and opinion, she stated that your dysfunctional family history adversely affected your subsequent social and emotional development, with you having lifelong problems with intimacy. She considered that while you have the capacity to reflect on the impact of your behaviour on yourself and others, that capacity is limited by your emotional detachment, a defence mechanism that she opined evolved in your formative years and continued to the present. I accept that opinion.
39 She did ask you what attracted you to your daughters, but did not ask in respect of FJ, and you responded that you “just needed sex…opportunity”. Ms Lechner stated that your offending is consistent with the category described in the literature as "regressed child molester" who “usually has low self-esteem and poor coping skills, and ...turns to children as a sexual substitute for the preferred peer sex partner…[the] main criterion seems to be availability, which is why many of these offenders molest their own children.”[13] The offending to which Ms Lechner seemed to be referring as being consistent with this was the admitted offending against your daughters, given the question she asked was about your attraction to them. However, I note that availability was also the main criterion for your sexual attack on FJ.
[13] Lanning, 2008 – see Exhibit 2 p.5
Risk assessment
40 Ms Lechner was not called to give evidence, so her report has not been challenged. On reflection, there are some aspects of her assessment that probably should have been examined further. As they were not, I will merely note the aspects, but make no findings of any sort that are adverse to you.
41 Ms Lechner assessed your risk of re-offending using instruments available to her as a psychologist. She found your risk to be low/moderate, “in light of [your] age and offence-free time in the community”.
42 In referring to your age, Ms Lechner did not appear to consider your history of offending as a younger and older man about twenty-two years apart.
43 Further, I note that she considered “the presence of a sexual deviation as an unknown”; that you denied “an interest in young teenage girls, but this appears to have matched [your] victims of choice on both occasions, hence cannot be ruled out, at least as a past factor”.
44 Lastly, she said that the link between being the victim of childhood sexual abuse and becoming a perpetrator remains unclear, but it is identified as a risk factor in the literature. However, she did not seem to consider that risk factor in her clinical judgment.
Current mental and physical health
45 Ms Lechner described you as having no underlying psychiatric or psychological issues, but noted on your self-report that you currently have symptoms of depression as a reaction to being in custody.
46 Before you went into custody in March 2018, you had an orthopaedic appointment at Frankston Hospital for the following month[14], for consultation about hip degeneration, and you continue to suffer hip pain. You have blood pressure which can have high readings, and I am told this is monitored daily in custody[15].
[14] Exhibit 3
[15] ibid
Findings
47 Having referred to a number of matters sought to be relied on in mitigation, I now make the following findings:
· First, while many of the matters in Ms Lechner’s report are relevant to be taken into account in your personal circumstances and I do so, in my view none of the matters reduces your moral culpability;
· Next, the delay between the offending against FJ in 1999 and today’s sentence is not attributable to you;
· Next, I take into account that you thought the matter was at an end when the police did not proceed at that time;
· Next, I take into account that once FJ’s allegations were revived in 2012, with additional allegations made by your step-daughter, of which you have since been acquitted, there was further delay, two years of it unexplained, and the allegations were untested until 2017 and finally dealt with in a second trial in 2018;
· On the other hand, you have continued to move on with your life since 1999, and as you continue to deny the offences, you have not been robbed of the opportunity to repent and serve your sentence as a younger man; this is to be contrasted with FJ who has had to endure the consequences of your crimes without you being called to account[16], even though she complained of the offending within months, and has had to relive the experience in evidence twice, seventeen and eighteen years later;
[16]Burgess v R [2017] VSCA 59, [21]
· Next, you have rehabilitated yourself, to the extent that you have not re-offended in the nineteen years since the offences against FJ. You have been in a stable, committed, supportive relationship for that same period, in which you are emotionally connected, apparently for the first time, and you have continued to be a hardworking member of the community;
· However, your rehabilitation is qualified, or incomplete, in that your history shows that you have previously reoffended after a long passage of time and there is no evidence that you have received any treatment for sexual offending against children;
· Further, you have only recently disclosed your own sexual abuse, your abuse being a factor that I take into account as a relevant part of your personal circumstances, but it carries with it the possibility of an increased risk of re-offending, and you have had no treatment to deal with the obvious trauma that it still brings to you, with a present wish not to engage in therapy because of the distress it causes you;
· Next, in considering the likelihood of you reoffending, I take into account your age; that you are in relatively good health, but have hip problems which cause you pain; that although you have some difficulty achieving and sustaining an erection, you were still engaging in sexual activity; that opportunity and availability of potential victims will continue to be less in future; and the assessment by Ms Lechner that your risk of reoffending is low/moderate, and I find that your likelihood of reoffending remains possible, but not probable;
· However, because of your status as a serious sex offender as defined in the Sentencing Act, I am required to regard the protection of the community from you as the principal purpose for which sentence is imposed;
· Next, taking into account your age and medical problems, being your hip degeneration and your high blood pressure, the fact that you are returning to prison as a much older man, and the fact that you are suffering from depression as a reaction to your legal situation, I accept that this term of imprisonment will be harder for you than for a younger man not suffering the same ailments; and
48 Lastly, I take into account sentencing practices at the time the offences were committed as one of the factors in the sentencing synthesis, noting that the maximum sentences were the same then as now, and noting also that the Sentencing Snapshots provided to me from the period 2011 to 2017 are based on all sentences given in this court, the vast majority of which are from pleas of guilty, with the reduction of sentence that brings.
49 Before I turn to the sentence, there are three further matters I must deal with. The first is that application has been made for an intimate forensic sample to be taken from you and through your counsel you have not objected to this. I am satisfied that it is in the interests of justice, that in all the circumstances, I order that an intimate forensic sample, namely saliva, be taken from you. The sample may be taken by a doctor or nurse or other authorised person. A saliva sample is taken by wiping a swab inside your mouth. I must inform you that if you change your mind, the police may use reasonable force to enable such a procedure to take place.
50 The second matter is that as a result of my sentence today, you become a registrable sex offender. You have previously been convicted of four Class 1 offences, and two Class 2 offences. Today, you are convicted of one Class 1 and one Class 2 offence. You will be required within seven days of your release from custody, to report your personal details and begin a regime of annual reporting required by the Sex Offenders Registration Act and be otherwise subject to the Act for the rest of your life. My associate will now ask you to sign a document to acknowledge that you have received notice of these reporting obligations and Ms Lacy, I might ask you to accompany my associate in case your client has any questions. Thank you.
51 The third matter is that you are to be sentenced as a serious sexual offender on both charges because of your previous sentences of imprisonment for incest and indecent assault. As previously noted, that means the protection of the community from you is the principal purpose for which sentence is imposed. In order to achieve this purpose, I have the power to impose a sentence greater than is proportionate to your offences. However, the prosecution do not seek that, and I do not intend to do that.
52 It is also necessary for the sentences I impose to be wholly cumulative, unless I order otherwise, because of your status as a serious sex offender. Because of the factors that operate in your favour that I have outlined, I have decided to order some concurrency. In saying that, I have also had regard to the limits the serious sex offender sentencing regime places on the application of the principle of totality[17]. Further, given your criminal history, I have decided that the serious sex offender sentencing regime requirement for total cumulation unless otherwise ordered, overrides the usual sentencing principle outcome that offences committed in the one episode are usually given wholly concurrent sentences, or close to total concurrency. Also, again because of the factors that operate in your favour, I have decided to impose a lower non-parole period than might otherwise have been imposed.
[17]HMcL v R (2000) 174 ALR 1, [76]; Gordon [2013] VSCA 343, [74]
53 In sentencing you, I take into account that deterrence, especially general deterrence, is of the utmost importance in cases involving sexual offending against children. That means that by my sentence of you, the court must seek to deter other men from committing sexual offences against children. Further, because of your unusual history of sexual offending so many years apart and the risk of reoffending that I find still exists, my sentence must also seek to deter you from reoffending.
54 The court must impose a sentence that is just in all the circumstances, and that reflects the community’s abhorrence of sexual violence, particularly committed against a child, with the damage that has caused. These principles apply, no matter how long ago the offending occurred.[18]
[18]DPP v Toomey [2006] VSCA 90; Burgess v R [2017] VSCA 59
55 You are convicted and sentenced as follows:
56 On Charge 4 of sexual penetration of a child under 16, five years’ imprisonment. That is the base sentence.
57 On Charge 5 of indecent act with a child under 16, two years’ imprisonment.
58 I direct that 12 months of the sentence imposed on Charge 5 be served concurrently with the sentence imposed on Charge 4. That makes a total effective sentence of six years’ imprisonment.
59 I direct that you serve a minimum term of three years, six months before becoming eligible for parole.
60 I declare that you have served 274 days in pre-sentence detention, not including today. These will be deducted administratively from your sentence.
61 I declare that you have been sentenced as a serious sex offender on both charges and direct that this be noted in the records of the court. Are there any other orders required?
62 MR CAMERON: No, Your Honour.
63 HER HONOUR: All right, thank you. Thank you, Mr Weller may be removed. I thank counsel for their assistance during this matter and I will now stand down or adjourn until 2 o'clock. Thank you.
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