Director of Public Prosecutions v West (a pseudonym)

[2025] VCC 490

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL JURISDICTION

Revised

Not Restricted

Suitable for Publication

THE DIRECTOR OF PUBLIC PROSECUTIONS

v

MATTHEW WEST (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:	19 March 2025
DATE OF SENTENCE:	16 April 2025
CASE MAY BE CITED AS:	DPP v West (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2025] VCC 490

REASONS FOR SENTENCE

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Subject:         Criminal Law

Catchwords:

Legislation Cited:

Cases Cited: Rodriguez v DPP (Cth) [2013] VSCA 216; The Queen v Stalio [2012] 46 VR 426; The Queen v AMP [2010] 48; The Queen v Better [2003] VSCA 71; The Queen v Nutter VSCA 8 Nov 1995)

Sentence: 3 Years Imprisonment; 10 Months Suspended Sentence; Lifetime Sex Offender Registration

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms McMaster	Ms Muir Office of Public Prosecutions
For the Accused	Mr Gullaci SC Mr Wareham	Ms Daly Galbally O’Brien

HIS HONOUR:

1Matthew West,[1] you were found guilty after a jury trial of one charge of indecent assault a person under the age of 16 (Debra Morgan)[2] committed between February 1983 and February 1984.  The maximum penalty for that offence is five years' imprisonment.  You were found guilty of committing, at the same time as charge 1, gross indecency with a person under the age of 16; which carries a maximum of two years' imprisonment.  Finally, you were found guilty of a third charge, of indecent assault of a person under the age of 16 (Annalise Fraser),[3] having been committed in the period between March and December of 1986.

[1] A pseudonym.

[2] A pseudonym.

[3] A pseudonym.

2I note at this time, because it will be relevant to some of the remarks I make later, that prior to the empanelment of the jury, another charge of indecent assault was discontinued in relation to a different complainant.  You were found not guilty of an assault on Debra Morgan alleged to have occurred in 1989 and you were found not guilty of a further indecent assault in relation to Annalise Fraser.

3Should you be sentenced to periods of imprisonment on Charges 1 and 2, which I say in this case is inevitable, you come to be sentenced as a serious sexual offender in relation to Charge 3.  As such, the protection of the community will become the dominant sentencing objective; although I note that the Crown does not seek , and I will not impose, a disproportionate sentence on that charge. 

4Further, for the finding of guilt in relation to the charges on the indictment you face registration under the Sexual Offender Registration Act for the period of life.

5You have no prior convictions and no matters outstanding. 

6A summary of your offending need only be brief. In 1983 you lived with your family, that is your wife Lydia,[4] and your three children above the family hardware store in Warburton. The offending against your daughter Debra is alleged to have occurred from the period between February 1983 and February 1984, when she was 13 years of age.

[4] A pseudonym.

7On the evidence called at trial it appears that you woke your daughter as she was asleep one night.  You beckoned her to follow you to the bathroom, told her to sit on the toilet with the seat up and to lift her nightie and spread her legs.  Although she said no, you put your finger inside and penetrated her vagina.  This lasted for several minutes.  When Ms Morgan glanced up she saw your erect penis poking through the hole in your pyjamas and you were stroking it.  These constitute Charges 1 and 2.

8I say in relation to Charge 1; I am satisfied the conduct occurred in the bathroom, although there was some various evidence that it may have occurred in a downstairs toilet.  There was some evidence of activity occurring in the sun room, but I disregard that and say that the act of gross indecency occurred in the bathroom at the same time as the indecent assault on Debra Morgan.   

9In relation to your daughter, Annalise, you had been fixing up a property in
Yarra Junction which you had bought and intended to move the family there, but the property was in a state of considerable disrepair and so repairs continued for many months.  On one occasion Annalise accompanied you to the property.  She remembers that she thought there was a flea on her thigh and she asked you to remove it.  This occurred in the bathroom.  The evidence at trial bears out that you had put a finger or fingers into her vagina.  She was unable to recall how many fingers that you inserted into her vagina and said it did not hurt.  That constituted Charge 3.  I conclude that the offending was confined to occurring in the bathroom at the Yarra Junction house.

10Although there had been some discussion between Debra Morgan, her mother and you on one occasion, and at another time there was a discussion between
Debra Morgan and her sister Annalise Fraser, the matter went unreported to the police until December 2020 when Debra Morgan told you that she was going to report the matter to the police after there had been an argument about you moving into the property in Queensland where Debra Morgan was living but owned by you.  Although Ms Morgan reported the matter to both Queensland and Victoria Police in December 2020, it is apparent that charges were not laid until a year later, in December 2021.  There was a committal conducted in late January and early February 2023 and then there were two trials listed in the course of 2024 which did not proceed to verdict.  None of the delay was your fault, Mr West.

11You were convicted by the jury on 17 March 2025.  As your counsel at trial, Mr Gullaci SC with Mr Wareham, noted on the plea, there was a delay of three years and three months from being charged, and four years and three months since you were told by Debra Morgan that she was going to report the matter to police.  I will take that delay into account in the sentencing process.  You have been on bail for the entire time and compliant with your bail conditions.  Whilst living in Queensland you made several trips to Victoria for trial and other purposes.  You appeared by video link when required.

12I turn then to a consideration of the objective gravity of, and your moral culpability for, your offending.  The objective gravity of your offending is indeed high, particularly when I look at the situation in relation to Debra Morgan.  Debra Morgan was your biological daughter; she was 13 years of age at the time of the offending.  Your offending required at least some planning and appears to have been minutes in duration.  I accept Mr Gullaci's submission that the gross indecency is a part and parcel of the whole of the sexual activity and that there should be either slight cumulation or full concurrency.  I have agreed that I ought to dismiss consideration of the allegations of continued activity in the sun room.

13The situation in relation to Annalise is also particularly serious.  Although the offending was less prolonged and appears to have been opportunistic, you offended against your biological daughter again.

14The law says that the absolute prohibition on sexual activity with a child under the age of 16 presumes that sexual activity which occurs before a child reaches an age at which they can give meaningful consent causes harm which is long lasting and serious, and manifests itself in both physical and psychological forms.  Therefore the harm to your victims is presumed.  The victim impact statements of both Debra and now Annalise have been read to the Court.  The harm to your daughters has been actual, lifelong, severe and manifest.  Listening to the victim impact statement first of Debra and then Annalise was harrowing.  It is to be hoped that they are able, with the verdict in this case and the sentence, to achieve some resolution, however you have already flagged your clear intention to appeal the verdicts of the court, so I fear that may be some time in coming.

15A wise judge of the Court of Appeal said a number of years ago that sometimes the rehabilitation of the victim, particularly of child sexual offending, was often harder to achieve than that of the offender.  I fear that is the case in relation to both Debra and particularly Annalise, whose life, plans and dreams were clearly derailed by your offending.  However I wish them both well and I hope that the courage that they have shown through the trial and the plea process will see them both through to achieving some happiness in life.

16Your offending involves sexual offences against your own children.  The law says that sexual offences against children are abhorred by the community.  This is all the more so when the crime is committed by and against a family member.  Offending such as this strikes at the core of the family relationship and in each instance involves a fundamental breach of trust.  This offending stands in total conflict with your responsibilities as a parent and your duty to protect and nurture your daughters.

17In both instances I find your moral culpability to be high.  Your offending must attract principles of general deterrence, denunciation and because of the sentence that must be imposed on charge 3, a measure of protection of the community, although I accept that you are now at an age and in circumstances where your opportunity to, or likelihood of offending are indeed low.

18I turn now to a brief consideration of your personal circumstances.  You were born in March 1950 and you are now 75 years of age.  At the time of the offending, as I say, you lived initially in Warburton, where you worked in the family hardware store which was below your accommodation.  After a period of time you moved to Yarra Junction and continued to operate the hardware store.  In about the early 1990s you made the decision to move to Queensland where you have lived continuously until your remand in custody in March of this year.

19You had three children, the two girls that I have outlined, and a son.  Your wife, Lydia, has suffered from dementia and serious dementia for nearly 20 years.  She has required a carer and at least, although the details were not made entirely clear to me, for some period of time you were living in the house in Queensland with your wife and she was cared for by a residential carer in the home.

20A significant aspect of your life has been taken up through your devotion to your religious beliefs through the a Church where you were a leader and a deacon.  It is telling and to your credit that you have not sought to rely on character references from any involved in the church or any character references at all.  Rather, it was submitted on your behalf that at your age the imposition of a relatively significant term of imprisonment represents a significant proportion of your remaining life span, particularly given that the offending occurred almost 40 years ago when you were 33 to 37 years of age.

21It was submitted that you pose a less likely danger to the community.  As I say, given that the offending was found to have occurred against your daughters and they have been out of your care and sight for many years now, you have not had the opportunity to commit offences in such a way and you are now at an age where you are unlikely to pose any further danger to the community.  Moreover, your counsel relied not only on your age but your previous history, your subsequent history, your good work ethic and the fact that you will serve a period of imprisonment and on your release you will be subject to the conditions of a sex offender registration order as protective factors.

22In the circumstances I consider that your prospects for rehabilitation are indeed good.  I do not consider there is any real prospect that you are likely to commit any further criminal offence, let alone any further sexual offence against a child.

23I was provided with material in relation to your medical health.  Although you have been examined in relatively recent times for cardiac shadows, you have had some respiratory issues and dizziness, it appears that none of the matters which were raised are of particular concern.  I acknowledge the fact, however, that at your age, even for a man in relatively good health,
medical issues are likely to continue to increase and dominate your time in prison.  It was not submitted that there were Verdins issues of which I needed to take account.

24Turning to the submissions of the parties, Mr Gullaci, with Mr Wareham, acknowledged that the trial had been fully defended.  There was a lengthy committal and trial conducted where you completely denied the allegations.  There is no discount for remorse, and none has been displayed.  There are no utilitarian benefits available to you.  Nonetheless, as I have said earlier, the trial was not a complete waste of time from the defence perspective in that through pre-trial argument one charge was discontinued, you were found not guilty of what was a violent assault alleged by your daughter and you were found not guilty of another indecent assault.  I accept that you ran a contested trial and there were good reasons to do so.

25I accept that you have had to endure a delay in this matter.  Mr Gullaci submitted that I should take into account the principle enunciated by the Court of Appeal in Rodriguez v DPP, where the court stated:

Delay is normally relevant in two ways.  Firstly, it is relevant to rehabilitation that has occurred during the delay and the effect it has in turn on specific deterrence.  Secondly, delay is relevant in the sense that the anxiety and uncertainty of having the prospect of a sentence hanging over one's head during the period of delay is akin to a punishment in itself.

26I accept that to be the case in this matter.

27In addition, I note that there is no further offending alleged and so the last offending alleged against you occurred some 37 years ago.  In the circumstances I am satisfied that you do have good prospects for your rehabilitation.

28One of the key matters argued on your behalf was that whilst I am required to take into account sentencing practices as at the date of the sentencing, there is considerable authority to say that I must also, so far as it may be open to me, take into account sentencing practices, so far as they may be known, at the time of the commission of the offences.  I was referred to The Queen v Stalio [2012] 46 VR 426 at 52, where the court said:

'We accept that in principle it may be relevant to consider sentencing practice at the date of an offence when sentencing for that offence occurs many years later. This is not because 'current sentencing practices', as referred to in s 5(2)(b) Sentencing Act relates to practices at the date of offence, but because this factor is relevant to attainment of the purposes set out in s 5(1), and in particular the imposition of punishment to the extent which is just in all the circumstances.  The principle of equal justice requires that regard be had to sentencing practices at the date of the offence when sentencing occurs after a substantial lapse of time.'

29I was further referred to The Queen v AMP [2010] VSCA 48 at 34, which noted that

'It is often difficult to determine what the sentencing practices were many years ago but the best that a sentencing judge could do in the circumstances would be to have regard to the fact that the range of sentences imposed for these types of offences were generally lower than the present range of sentences for the same or similar offences.' 

30In this case that is of course marked by the fact that the offending with which you have been charged, indecent assault of a child under 16 and
gross indecency carry maximum periods of imprisonment of five years and three years respectively.

31I was referred to The Queen v Better [2003] VSCA 71 where partially suspended sentences were considered appropriate (except for the period of time already served), which was 223 days. I was also referred to The Queen v Nutter 8 Nov 1995 which showed that the court, for offences which were committed in 1987 to 1989, imposed a low suspended sentence except for the period of time already served.

32Moreover, I was referred to the sentencing statistics for the years 1983 to 1988 where the average sentence of imprisonment imposed on a charge of indecent assault on a person under 16 appears to have been at 16 months, and a sentence of two years sat at the 75th percentile.  I think in all the circumstances I can take it from that that the sentences imposed at the time of your offending were indeed low and compared to the fact that similar circumstances, if committed today, would be charged as incest and penetration offences which would attract a far higher maximum penalty, indicate that I must have regard to sentencing practices at the time of the commission of the offences and the total effective sentence I impose must take that into account.

33Mr Gullaci and Mr Wareham submitted that the appropriate sentence in this case would be a partially suspended sentence.  A partially suspended sentence, which is open because of the time at which the offending occurred, but would not be open if I was sentencing for recent offences, enables me to impose a total effective sentence and suspend part of the sentence.  That means that you have date certainty of release and, subject to the SORA conditions, would be able to return to Queensland.

34Ms McMaster, who prosecuted the trial and plea, submitted on instructions that a total effective sentence and a non-parole period was appropriate to be applied in this case.  When I pressed Ms McMaster on whether a partially suspended sentence was open, the reply I received implied that it would depend on what the sentence was.

35In this case, although there is little in mitigation that can be said or relied upon, the fact that the Crown is not seeking a disproportionate sentence, and the fact that the Crown has supplied considerable material which points to sentencing practices many years after offending has occurred, and taking into account, as I can, at least to some little extent your age and medical material, I have decided, Mr West, that a partially suspended sentence is not only open but is appropriate in this case.

36I should have said that I take into account that because of your family situation, that is you are alienated from your children, you do not have your wife available to you, if you have other companions, friends or loved ones, they appear now based in Queensland, you will serve your sentence as you age in considerable conditions of isolation.  I consider that is a factor I can take into account.

37All right.  Now, in the circumstances, although higher than the sentence statistics indicate for sentences imposed at the time, I have decided on the following sentences:

38On Charge 1 you are convicted and sentenced to a period of two years and three months.  Mr Wareham, the total maximum sentence can only be a sentence of three years, is that correct?

39MR WAREHAM:  That is my understanding, yes, Your Honour.

40HIS HONOUR:  And the sentence on any individual sentence can be a sentence of up to three years, is that correct?  Or is it two years?

41MR WAREHAM:  That's a very good question, Your Honour.

42HIS HONOUR:  I am just going to stand down for a moment, before I continue with sentence.

43MR WAREHAM:  I'll seek some instructions, Your Honour, if that's - - -

44HIS HONOUR:  Thank you.  I'll come back to you in a few minutes.

(Short adjournment.)

45HIS HONOUR:  Ms Muir, that excellent email that you sent to my chambers would indicate that the maximum penalty available on any individual charge and maximum total effective sentence is three years.  Do you agree with that?

46MS MUIR: I agree with that, Your Honour, through operation of s27(2) Sentencing Act.

47HIS HONOUR:  Thank you.  Mr Wareham, do you agree with that?

48MR WAREHAM:  I agree with that, Your Honour.

49HIS HONOUR:  Thank you.  All right.  So if I return to the sentencing.

50The sentence on Charge 1 is a sentence of two years and three months.  The sentence on Charge 2 you are convicted and sentenced to a term of
nine months' imprisonment to be served concurrently with Charge 1 and
Charge 3.  The sentence on Charge 3 is a sentence of two years and
three months.  I cumulate nine months of that sentence on Charge 1, bringing a total effective sentence of three years.  I order that 10 months of that sentence be suspended, which requires you, Mr West, to serve a period of two years and two months.

51In relation to Charge 3 you are declared a serious sexual offender. I require that to be entered into the records of the court. You are to be registered as a sex offender under the Sex Offender Registration Act for the period of life having been found guilty of class 1 offences.

52Ms Muir, is there anything I have missed or anything you wish to add?

53MS MUIR:  Sorry, Your Honour, I'm just reviewing that email that I sent through to chambers.  I believe that that covers all of the information.  Perhaps just an explanation of the order under s27(4).

54HIS HONOUR:  Yes.  .

55HIS HONOUR:  So you are good to go.  Mr Wareham, any sentencing errors you want to bring to my attention?

56MR WAREHAM:  No, Your Honour.

57HIS HONOUR:  All right, thank you.  The effect of the order is, Mr West,
that – I am sorry, I have got to make the PSD declaration.

58I declare the period of 28 days pre-sentence detention excluding today reckoned as already served.

59So the effect of the order is this, Mr West.  You are sentenced to a period of three years' imprisonment but you only have to actually serve two years and two months.  Because you have served 28 days on remand, this is your 29th day, I can say in effect that you have two years and one month to go.  In saying that I understand you have your appeal rights and will exercise them.  But the order I make is that you serve a period of two years and two months.  The balance of the period will be suspended for a period of three years.  If you commit no further offences in the period of three years then you will not be required to serve the suspended period of ten months.  If you are found guilty of any offence punishable by imprisonment committed in the operation period of three years, you will be brought back before me and likely required to serve the further period of 10 months.

60What it means though, Mr West, is that all things being equal you have date certainty as to when you will be released from prison and subject to the reporting requirements of the Sex Offender Registration Act, because you are not under a period of parole, all things being equal you should be able to return to your home immediately upon your release and compliance with the SORA provisions.

61Mr Wareham, anything else from your perspective?

62MR WAREHAM:  No, Your Honour.

63HIS HONOUR:  Thank you.  Anything else from your perspective, Ms Muir?

64MS MUIR:  Nothing further, Your Honour.

65HIS HONOUR:  Thank you to Debra Morgan, who I believe has watched the sentencing process on the link.  Again, I commend you for your courage and integrity both during the trial and for participating in the sentencing process.  There is nothing else.  I will adjourn the court now.

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