Director of Public Prosecutions v Westbury

[2014] VCC 2302

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT GEELONG
CRIMINAL JURISDICTION

CR

DIRECTOR OF PUBLIC PROSECUTIONS

v

GRAEME WESTBURY

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Geelong
DATE OF HEARING:
DATE OF SENTENCE:	5 December 2014
CASE MAY BE CITED AS:	DPP v Westbury
MEDIUM NEUTRAL CITATION:	[2014] VCC 2302

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Ms C.J. Duckett	Office of Public Prosecutions
For the Offender	Ms Z. Broughton	Victoria Legal Aid

HIS HONOUR: 

1Graeme Westbury, in 1995 you had a brief relationship with a woman in Perth.  The complainant in this matter was the child of that relationship.  You have always been aware of your daughter living in Perth.  You kept in touch with her mother, but beyond that had nothing or little to do with her as she grew up.

2During 2010 some arrangements were set in place for the complainant to visit you, her natural father in Victoria, and she stayed for about a fortnight.  Later arrangements were made for her to come back and live with you and ultimately she did so from January 2012.

3Her circumstances in Perth were difficult and, unfortunately, it seems her mother had significant problems.  The complainant was particularly keen to start a new life in Victoria.

4In early 2014, in circumstances I will deal with later, the complainant came to reveal to the police the ongoing and dreadful sexual abuse and exploitation you had subjected her to from January 2012 until she left your place before revealing matters to the police.

5The Director of Public Prosecutions indicted you on two charges of incest.  One being penile penetration of your daughter's vagina.  The other was anal penetration.

6The first charge is agreed between the Director and you to be a representative charge, thus the single charge of incest by penal penetration of her vagina is representative of many unparticularised times you penetrated your teenage daughter for your perverse pleasure.  They were set out in the opening, paragraph 31, which I have re-read in the break that we have had today. 

7The anal penetration was a single event and single charge.

8I have applied to Charge 1, the principles governing sentencing for representative charges.  By reason of the charge being representative, I am authorised to see the offence in its proper and wider context.  I can take into account the full impact on the victim for the whole of your conduct though in that sense I have put to one side some things that she said about events when she came for a holiday.

9The fact that the charges are representative is an aggravating factor, adding to the gravity of the offending.  However, I am only punishing you for the representative charge of incest and a single charge of incest that had been made and to which you have pleaded guilty.

10Incest by the penal penetration occurred after she came to live with you in Victoria in January 2014.  From that time your sexual abuse did continue and as set out in the opening, there was an escalation.  There was an expectation she would engage in sex with you regularly, that as time went on you took to engage in rough or disturbing sexual conduct such as putting ever increasing pressure on her throat during your penetration on her, or using cuffs, or tying or taping her hands and feet and putting her over a kitchen bench.  These are all degrading aspects of your crimes.  Your conduct also physically hurt her at times. 

11Another disturbing incident was that you effectively wrapped her tightly in a blanket and wrapped duct tape around that so she could not move and then you put a bag over her head.  She was fearful she would die.  This was charged as common assault. 

12You sexually defiled your daughter by the anal penetration of her with your penis.  This gave rise to the second charge of incest, single event, Charge 4.

13Another element of your perversity is you had your daughter pose in provocative clothing or underwear, taking and keeping photographs of her.  This gave rise to the charge, producing child pornography.

14You exercised domination and power over her, involving saying what she wore and did not.

15The circumstances of these crimes coming to light are also telling.  The complainant's mother in Western Australia did not provide the complainant with much by way of parental care and love as she grew up.  On the contrary, the complainant had many adult like responsibilities when still a child due to her mother's inadequacies and difficulties.  In that sense, the complainant's attachment to you, Mr Westbury, as her father, made her that much more vulnerable.  She had no-one else to turn to.  She was emotionally raw.

16When she had the strength to leave your house and stay with friends she was still struggling.  In the end she took an overdose of Oxycontin and ended up in hospital.  You blamed, or sought to deflect blame, on to her new boyfriend, for her ending up in hospital.  You told her mother this. In a fraught state she revealed what you had been doing to her and the police became involved. 

17You exercised your rights to remain silent, but you quickly contacted your emotionally strained daughter asking her why she was telling the police what you had done, telling her that you loved her and, in effect, that you would kill yourself now that she had said what had been happening.

18An intervention order was obtained, but you breached that by contacting and speaking to the complainant.  She was in a confused state as her more recent Victim Impact Statement reveals.  I accept that she was a party to talking with you, but you were the adult and you knew you were prohibited from being in contact with her.  The breach of the intervention order is also a crime which you now face.

19I have briefly mentioned the complainant's Victim Impact Statement.  It was read in court.  For some time, I, and my fellow judges, have been expressing that one thing we have learned about sexual abuse is the deep and often long-lasting adverse psychological effect sexual abuse has on victims.  Our education has come through Victim Impact Statements of the kind prepared in this case.  Indeed, I doubt I have read a more honest, or brutally frank, and heart-wrenching Victim Impact Statement than this one.  The impact of your crimes on the victim is a matter I must have regard to and also it is a factor in my assessment of the gravity of what you did.

20That said, I have made sure that I have taken a balanced approach and not been overwhelmed by the circumstances, or the Victim Impact Statement.

21The victim tells of great confusion these crimes have caused, and the loss to the victim of so much that other children and teenagers enjoy.  She speaks of her utter isolation as she has now no parent and no-one to turn to.

22She writes that at first when it happened she was uncertain about things, but then you became more controlling.  She speaks of by March 2014 feeling stressed and angry because, "I didn't know what to do about him."

23She continues.  "Everything was too much and I was hurting inside, hurting a lot."  She speaks about her overdose and then revealing your crimes.  She says this, after she says she blurted it out.  "The next day the psyche at school talked to me and that's the day the detectives came to school and I ended up in a refuge.  That was five months ago.  I have lived in the refuge for 11 and a half weeks and now I am in supported accommodation.  I couldn't have friends over.  I couldn't tell anyone where I lived.  Couldn't talk to anyone about what was happening to me.  It was the most scared I've been in my life.  I couldn't even tell my mum what was happening.  I had to change my phone number and I lost the contact that I had with my younger brother and others," in her family.

24She says, "I had to deal with school through all this and pretend life was normal.  Can't do it, and I didn't do it.  I stopped going to school, and sometimes would cry for days."  She said she would often get to the school and just turn around and walk out.  She failed all her subjects, except for one at half-year, and she says she is going to have to repeat Year 12.

25"School don't know how to deal with me as I've got no parent for them to talk to me about."

26She, like many victims, are left feeling confused and having a totally unjustified sense of guilt themselves because the perpetrator is now in gaol.  She should not have to feel this way.  She is not to blame at all, Mr Westbury.  You are entirely to blame.

27What she said was that what happened is, "I didn't get to be a teenager.  I didn't get to have parents, not even one parent who came to stuff and supported me and let me be a dumb teenager and grow up.  I had a mum I couldn't talk to, and a father who did things that no father should ever do to his daughter."

28She goes on.  "I don't really know who I am any more.  Some days I can laugh, and other days I don't want to live."  She speaks of being in psychiatric care and units and hurting physically.  She said, "Most days I feel like I have nothing and no-one."  Then goes on to say, as she is entitled to, "I deserve better than that."

29She says, "Maybe one day it won't matter any more, but I can't see that day."  She says her life has been changed forever.

30The representative charge that you pleaded guilty to is serious examples of the grave crime of incest, as is the single charge.  It is an abhorrent crime, incest.  It tears at the fabric of what is highly valued in our community, that is, a parents' love, care and protection for their children.

31When someone like you enters the dark realm of sexual abuse of their child, the community is sickened, bewildered, and, rightly, has no tolerance.  What is required is that you are removed from our community for a significant period and that proper values are thereby re-asserted. 

32The comprehensive breach of trust is obvious in this matter and the particular circumstances of this crime and the vulnerability of the victim, your breach of trust is particularly aggravating.

33The usual circumstances taken into account in assessing the gravity of crimes like this are the nature of the sexual conduct, the length of the offending and the age of the victim and the breach of trust.  These are some of the matters, but there are others.

34Just turning to those matters:  they need to be carefully analysed in this case.  The sexual abuse commenced virtually as soon as the victim was living with you in your care and it continued until she revealed your crimes.  It was over a lengthy period.  So while other offenders may have sexually abused victims for longer, you did so for almost the entire time that you were able to do so.

35Having said that, that is the broad context of these offences.  I never lose sight of the fact that there is one representative charge.

36Also the victim was not as young as some victims of other offenders in cases that come before these courts, but I do need to take into account the particular vulnerability of the victim in this case, as I have mentioned.

37As noted, you not only breached the ordinary trust the community has in parents not to abuse children, but you exploited your daughter's particular vulnerability, given her mother's emotional frailty. 

38I add, that the crime of the common assault was particularly frightening.  It is also a serious example of the crime of common assault where there is not actual injury.

39Your moral culpability is very high, as you well knew what you were doing was deeply wrong and you kept doing it until the complainant revealed the truth.  Even then you tried to use emotional tools to influence her away from exposing you to proper sanction, thus the breach of the intervention order in this case is a serious breach.

40Ultimately you accepted responsibility and pleaded guilty.  Consequently your sentence will be less than otherwise would be the case.  You saved the victim much added trauma and that is no small matter in cases of this kind.  You have also saved the community precious resources.

41Your counsel contended on your behalf that you are remorseful.  The basis for this is what you said to a medico/legal psychiatrist engaged by your solicitors for the purpose of your plea.  You told that psychiatrist, Dr Cunningham, that you feel guilt and confusion and that you could not identify a reason for your actions.

42Dr Cunningham concluded you presented as remorseful for the hurt caused to the victim.

43I must say this evidence of remorse is, in my view, thin.  There was no explicit reference to you expressing remorse to your family members who took it upon themselves to write letters to the court on your behalf.

44I cannot, and do not, take into account that you did not give evidence on your plea to express your remorse.  In the end, I am left with little evidence of express genuine remorse.  Your plea of guilty is an expression of your acknowledgment of your wrongdoing, and its timing is revealing of insight and, to that degree, I can see it as some evidence of remorse.

45The community values genuine remorse when an offender has hurt a victim.  If genuine remorse is present, it permits weight to be given to the prospects for rehabilitation, and allows for mercy to be more readily shown.

46The community is wary of those who find themselves in trouble, saying what they think is expected of them, or saying what they think will help them get a leniency.

47I am not saying that is your position but I remain a bit wary as to whether you are genuinely remorseful, as opposed to concerned about the predicament that you now find yourself in now that your crimes have been exposed.

48You are entitled to credit because until your offending you had no blemish on your character.  In this regard, you are like many who sexually abuse children within their own family, so the weight to be given to your good character is not to be overstated, but it is, nonetheless a matter in your favour.

49As to your personal circumstances, I note that you were adopted as an infant, as were, it seems, a sibling.  You were raised in Sydney and then in Melbourne.  Your parents wrote a letter of support and I read that as indicating that they still care for you and love you despite the circumstances that have unfolded.

50Your account to Dr Cunningham had a perhaps different slant on it saying your parents, in particular, your mother, picked on you, and demeaned you.  It is hard to reconcile this, but your account to Dr Cunningham was taken as accurate by him in his later diagnosis.

51It may be that despite what your parents say, you have subjectively come to the view, or have the feeling that you were hard done by as a child.

52You left school after Year 11 and you have worked consistently until your incarceration at a variety of labouring jobs and truck driving.  That work history is commendable.  You travelled Australia extensively in your early years. 

53You have had an on and off relationship with Justine Brindley since 1992.  A son was born of that relationship and he is important to you.

54You have struggled with alcohol through your adult life and there is reference in various medical material that if not an alcoholic, you were almost that.  Your partner, Ms Brindley, indicates that you have used alcohol, as a crutch, and it was the cause of difficulties between you.

55After your offending was exposed or was being in the process of being exposed, you were found on a freeway overpass with a bag and a rope.  You were taken to Dandenong Hospital, psychiatric ward, and being treated before being discharged a day or so later to the care of your general practitioner.

56You had two more involuntary admissions to the Dandenong psychiatric wards on 22 February, for five days, and 16 April 2014.

57As noted, you were seen by Dr Cunningham for medico/legal purposes.  As I have said, oddly, Dr Cunningham does not seem to have reviewed the hospital medical records of your admissions in early 2014.  They were part of the depositions.  Nor does it seem that he spoke to the treating medical staff who dealt with you at the Dandenong Hospital.  He did take time to speak with Ms Brindley, your partner, and close friend.  Of course he spoke with you while you were on remand two days before your plea was heard before me, or commenced before me on 25 September 2014.

58From those accounts that were given to him from your presentation while you were on remand and by him looking up the criteria set out in DSM5, the Manual sets out factors which, if present, allow for diagnosis to be made, he diagnosed you as having major depressive disorder.  I express my concern at that blunt diagnosis and its concisely expressed basis on which it was made when the plea was first heard in late September 2014.

59At your counsel's request the matter was adjourned in order to get a further report from Dr Cunningham.  The first supplementary report he provided was not based on further clinical assessments or review of any prison medical records at that time, or other reviews of the hospital records or discussions with any of Dr Cunningham's psychiatric colleagues who treated you at the times that you were admitted to the hospital.

60Disappointingly, his supplementary report adds little.  The position as to your depressive illness, its duration, its causes and, most importantly, any role it may play in my sentencing consideration, remained at that time, uncertain.

61The material, in my view, does not meet the plainly expressed requirement that real rigour apply to medical evidence and opinions put forward in sentencing hearings.  That, again, is regrettable.

62Turning to the specific sentencing considerations raised as a consequence of your mental health or as it is commonly termed, any impaired mental functioning.

63I should add that I was to sentence you a few days ago, but, regrettably, due to illness I could not do so and your lawyers have taken the opportunity to seek a further report from Dr Cunningham.

64What was asked of Dr Cunningham was that he review the prison medical file in order to provide an opinion as to whether his conclusion that your major depressive disorder may worsen in custody, whether that still stands.

65I will turn to his conclusions in the second supplementary report which were, in short, that Dr Cunningham stands by his original opinion.

66However, what Dr Cunningham did not do is consider or reconsider his diagnosis, in light of what is set out in the prison medical file.

67It is hard for me as a layman to know whether Dr Cunningham tested his own diagnosis against the information and opinions of those who have been treating you for the past 207 days, or ten months, that you have been in custody.

68The prison medical authorities are plainly providing psychotropic medications to treat your problems.  You have also been provided with psychiatric nurses to assess and treat you, but there have been difficulties with that; you telling them that they are, in effect, not the ones that can help you and you have left appointments, at times, so that instantly, or very soon after they commenced because you were not seeing a doctor.

69Nonetheless, there is within the medical material from the prison file which was tendered, indications that you have problems with depression.

70Despite the length that I have gone to thus far and the lengths that I went to in the helpful exchanges with counsel, I am mindful of what is said in the well-known case of Verdins, that I do not need to get bogged down in diagnostic labels.

71What I have to consider is whether and, to what extent, your mental health plays a role in my sentencing consideration.  I was relieved of much of what was at first put forward on your behalf when your counsel, having got Dr Cunningham's first supplementary report, and reflected on that, as she sensibly abandoned any argument that your moral culpability was to be seen as lower by reason of your mental health.

72The recent decision published just yesterday in the DPP v Meyers, makes it plain that the argument that was abandoned by your counsel was, indeed, foredoomed to fail.

73There are other aspects of the decision of DPP v Meyers which assists me in other regards, and I will refer to that shortly as to what remained of your counsel's submissions based on Dr Cunningham's reports.  Those arguments were that I should allow for mitigation because you will find prison more burdensome by reason of what Dr Cunningham says is your major depressive disorder, and that this condition may worsen in custody.

74As already mentioned in his second supplementary report, Dr Cunningham reviewed your prison medical file and stood by his original opinion that it is likely that your major depressive disorder would worsen in gaol.

75Taking the first question of whether prison would be more burdensome for you, accepting that you have depression; of course it has been long the case that the courts have taken into account a prisoner's physical disabilities and frailties as possibly making prison harder for them than others without that disability.

76It was usually the case that evidence was put forward of what could, or could not be done by the authorities to deal with, or ameliorate these physical problems of disabilities.  The recent case of the DPP v Meyers is just such a case in that Mr Meyers had an enduring and seriously painful back injury.

77Some problems and disabilities with a prisoner's mental health or cognitive function are, from time to time, capable of being seen as creating added burdens for the prisoner, not experienced by others.

78Here I mean problems such as intellectual disability or autism which make it hard for a prisoner who cannot understand or cope with the difficult nuances or social tensions that arise in the brutality of prison life.  They are simply more vulnerable and easily exploited because of their particular disability or impaired mental functioning.

79It is much harder to ascertain just what it is that makes prison more burdensome or onerous for a prisoner with depression.  This is not to underestimate the problem of depression, but as was succinctly said by the Court of Appeal in DPP v Meyers:

"Being depressed in gaol is unfortunately very common and understandable, and in the ordinary case would not justify a reduction in sentence."

This was in relation to the prison being more burdensome.

80Prison is, of course, hard and grinding on prisoners.  Sadly, that is the point.  It is punishment for crimes committed.  It may be harder because of the physical or mental ill-health that cannot be properly managed by the authorities.

81There is not sufficient evidence that any depression that you may have is out of the ordinary, justifying a reduction in your sentence by reason of the prison being more burdensome.  You are medicated for depression and I was told the records reveal adjustments in types and dosages have occurred revealing a proper nuanced approach to the fiendishly difficult task of treating depression.

82I was told you have seen psychiatric staff which reveals you have needs but they have at least on those occasions been available to assist.  Ideally, there would be full and comprehensive psychological counselling available to all prisoners in need.  I was told that you will embark on appropriate courses, at the appropriate time, for sex offenders, when you move from being on remand to a sentenced prisoner.  I just hope you do engage in all that is available to promote your mental health and enhance your rehabilitation prospects.

83In the end your counsel did not contend that there ought be much mitigation by reason of prison being harder.  Dr Cunningham did not, in terms, address this issue.  Rather he concentrated on whether your condition would likely worsen.  It may be that if it did worsen, prison would become more burdensome, but that is unclear.

84There is, in the end, no solid evidence, that prison is more burdensome because of any impaired mental functioning.  No doubt you will be doing prison hard because you do not like being incarcerated.  You have no experience of it and never considered you would end up in prison.  No doubt these things have a flattening effect on you and reduce your enthusiasm and enjoyment of life; make you irritable and reactive to, for instance, the psychiatric nurses, who you said were no good to you and you wanted the doctors.

85But these things are all reactions to the harsh predicament.  They do not become reasons to reduce your sentence and I do not intend to mitigate your sentence on the basis that any impaired mental functioning makes prison more burdensome for you.

86I turn to the separate proposition that I ought to reduce your sentence because your condition may worsen in prison, or as a consequence of prison.

87Dr Cunningham maintained the opinion that the recommended treatment for what he says you have, major depressive disorder, is medication and psychological treatment.  He says you normally would be treated with, "A treatment strategy", involving cognitive behaviour therapy or mindfulness treatment.

88He notes that at the moment you are being properly treated with medication and psychiatric reviews, but not with psychological treatment.  His opinion is that you are not receiving recommended, or perhaps that means ideal treatment and, therefore, it is likely your condition will worsen. 

89What has to be kept in mind is a proper and balanced view of what can and ought be done as part of the prison authorities' responsibility to look after prisoners.  That is, what can, and ought to be, provided to them.

90Ideally much more would be provided to educate and rehabilitate prisoners in areas such as literacy, anti-addiction therapies, counselling for past and often serious psychological trauma in the prisoner's lives; advanced psychological treatment for those with schizophrenia, and the lists goes on and on.

91It probably would be better if you, Mr Westbury, could have cognitive behavioural therapy and mindfulness therapy, and provided you accepted and embraced it, those things would probably help you, but I do not think the court in Verdins or in any cases before Verdins or after, had in mind that a prisoner with depression would have a sentence reduced because the ideal therapeutic modality or the recommended therapeutic modality was not completely available and, because of that, the generalised opinion that the condition will thereby worsen, justifies a reduction in sentence.

92What is starkly absent in this case is Dr Cunningham, or anyone else, saying that your condition has, in fact, worsened, to any extent in the time that you have been in custody.  It seems to me despite Dr Cunningham re-expressing his opinion, that the prediction he makes is too uncertain and is not based on evidence of what has, or is, currently happening in terms of any worsening of your depression.  It is based on the perceived failure that you ought be provided with a better treatment modality and that is not happening, therefore things are likely to get worse.

93I do not intend to reduce your sentence by reason of the submission put by your counsel that your condition may worsen in prison.

94You are in protection in prison at the moment and that is harder for you.  You will be, in all likelihood, to spend your time in custody in prison set up for your type of classification and thus any current difficulty will likely abate, but I do take into account that you are in protection.

95There are two charges of incest and one charge of producing child pornography, and this engages the Serious Sexual Offender provisions of the Sentencing Act, but it only comes into play in relation to the second incest charge.  There is no need, and there will be no disproportionate sentence.

96The protection of the community is always an important sentencing consideration, but it must be regarded, and will be regarded, as the primary sentencing consideration of Charge 4.

97The remaining impact of the Serious Sexual Offender provisions is upon orders for cumulation in respect of Charge 4.  I have applied the principles as expressed in Barbat v Queen.  In this case the most appropriate charge for the base sentence is Charge 1.  It is the most serious as the representative charge.  That is so, notwithstanding that it is only Charge 4 that attracts the Serious Sexual Offender provisions.

98Thus the usual approach of fixing an appropriate sentence with moderate cumulations can, and ought to be, in this case, slightly varied so as to ensure that proper regard is had to Parliament's intent as expressed in s.6E of the Sentencing Act.

99Tension between this statutory provision and the principles of totality remains a difficulty for sentencing judges and, it is, to some degree, a difficulty in this case, but to use the language of the statute, I will direct otherwise than complete cumulation of Charge 4.

100As required, I will explain the reasons that I do not order full cumulation.  If I did so, that would result in a sentence that would be an outlier compared to other like crimes and sentences thus it would be unfairly inconsistent.  It would also mean I could not impose what I consider is a just and appropriate sentence, in all the circumstances, and I can, and should, satisfy all sentencing purposes by the imposition of a sentence with a measure of cumulation, but far from complete cumulation for Charge 4.

101As I hope I have already made clear, the sentencing considerations that are of importance in this case are denunciation of your abhorrent crimes.  Denunciation must not just be expressed in damning words, but there must also be a practical articulation of denunciation via the sentence I impose.

102Deterrence to others is a powerful and weighty matter of crimes of this type.  Given the nature of your crimes and the disturbing and concerning aspects involved, including the common assault, there ought be some weight given to deterrence to you personally, notwithstanding your lack of prior history.

103Your rehabilitation is not overlooked, but I take note that you are assessed by Dr Cunningham in the middle category, that being a moderate risk of re-offending.  I am cautious about your prospects of complete reform.  You have by reason of your incarceration, ceased abusing alcohol.  That, if it continues beyond your time in custody; it does reduce your risk factors. 

104Your brother, in particular, seems to be of the view that these events have woken you up, shaken you such that you will be able to avoid sexual offending in the future.  Those matters weigh in favour of your rehabilitation.

105You will, I hope, engage and benefit from, targeted sex offender programs that are available in prison and hopefully on your release.  Whether you have put this type of behaviour behind you, Mr Westbury, once and for all, is entirely up to you.

106The capacity I have to establish conditions to facilitate your rehabilitation are, in truth, limited.  I will allow for a potential parole, or for a period of potential parole, but how long you are on parole and on what conditions, is for others well into the future to decide, not me.

107I have re-visited my proposed orders to ensure that your overall sentence meets the totality of your offending, no more and no less, but taking into account what I have said as to the operation of s.6E in respect of the final charge.

108I have considered other relevant comparative sentences, mindful of the well understood principles of the limitations of "like cases", and the limitations of raw statistics.

109Such principles have been made clear in cases such as Hudson and repeated regularly including in the case of Reid (a Pseudonym) 2014 VSCA 145 at 93.

110In that case, Justice Priest surveyed many serious examples of incest, as well as a most thorough analysis of the underlying sentencing principles that he distilled from cases in this jurisdiction and also from many other jurisdictions.

111In Reid, President Maxwell and Justice Whelan agreed with the reasons expressed by Justice Priest.  In that case there were many more counts, that is in Reid itself, many more counts of incest and more serious examples than here, and more serious examples of - much more serious examples of the production of child pornography matters.

112A great number of charges gave rise in that case to real issues of the tension between s.6E and the principle of totality.

113I have examined the cases referred to by Justice Priest and others collected by the Judicial College of Victoria in its databases.  I am helped and guided so that in the end I contribute by my sentence here, contribute to, and not undermine, the important principle of consistency in sentencing.

114No other sentence, however, caps or collars my discretion, but they are, in the broad terms, yardsticks.  So too is the very long maximum term that Parliament has fixed for this offence of incest, being 25 years' imprisonment.

115There are more serious and depraved cases, but yours is not in the lower half of the spectrum; indeed, it well, in my view, it is into the more serious end of the scale.  The psychological harm you inflicted is significant and ongoing.

116Your sentence must reflect the gravity of what you did and the harm you caused.

117In making the orders for imprisonment and the orders for cumulation, I consider, as I have said, the first charge to warrant the longest term and to be the base sentence.

118Although Charge 4 has elements of degradation it would attract a lower term, but as you fall to be sentenced as a serious sexual offender for that crime alone, as I have said, I will direct otherwise than full cumulation, but I will allow for an appropriate and just measure of cumulation.

119As I have said, I have re-visited and adjusted all orders for cumulation so the principles of totality is adhered to, or to put another way, in the exercise of my wide discretion, the principles of totality have not been offended.

120Will you please stand, Mr Westbury.

121For committing the crime of incest, Charge 1, a representative charge of penile/vaginal penetration, you are sentenced to a term of imprisonment of six years.

122For committing the crime, Charge 2, of common assault, you are sentenced to a term of imprisonment of 18 months.

123For committing the crime relating to the production of child pornography, you are sentenced to a term of imprisonment of ten months.

124For committing the crime of incest, the anal penetration, the single event, you are sentenced to a term of imprisonment of four years.

125For the summary offence of breaching the intervention order, you are sentenced to a term of imprisonment of ten months.

126I order that six months of Charge 2, three months of Charge 3, and 18 months of Charge 4, and three months of the summary charge, be cumulative upon each other and upon the sentence that I impose on Charge 1.  This gives a total effective sentence of eight years and six months and I fix a minimum period before you are eligible for parole at six years and six months.

127You have already served 207 days of the sentence that I have just imposed.  I will ensure that this declaration is entered into the records of the court so the prison authorities are left in no doubt that you have already served the 207 days in custody.

128Had you pleaded not guilty to these offences and been found guilty of them, I would have imposed a sentence of 11 years with a non-parole period of nine.

129By reason of the serious sexual offender provisions, I cause to be entered into the records of the court that for Charge 4 you are serious sexual offender. By reason of the provisions of the Sex Offenders Registration Act, you become liable to be registered on that register.  That is mandatory.  The period of time that you must remain on that register is mandatory, that is life.

130There is also an application to be made for forfeiture of some of the items connected to this crime.  That order will be made ultimately when the documentation is provided to me.

131What remains, Mr Westbury is, because you must register under the Sex Offenders Register, that Act, or its regulation, requires me to sign a document saying that I have given you documents and you have to sign a document saying you got them.  But it is the documents themselves that count, they set out your responsibilities once you are released, to register.  Of course read them carefully and re-visit them before you are released.  Do you understand?  Thank you.

132Does the arithmetic work out?

133MS BROUGHTON:  Yes, Your Honour.

134MS DUCKETT:  Yes, Your Honour.

135MS BROUGHTON:  There is only one issue that is entirely my fault and, in no way, will affect the sentence.

136HIS HONOUR:  Yes, what's that?

137MS BROUGHTON:  Your Honour indicated that he was admitted to Dandenong Hospital on 16 April, that is my fault, it was not, it was 16 February and 23 February, so I apologise for that.

138HIS HONOUR:  Well, there is a slight variation, but it does not impact.  I have taken into account that there was significant psychiatric problems reacted to, predominantly reacted to the crimes and his underlying problems as well.

139MS BROUGHTON:  Thank you, Your Honour.

140HIS HONOUR:  Has he got the documents?  He has to have the documents.

141MS BROUGHTON:  Yes, Your Honour, just sometimes ‑ ‑ ‑

142HIS HONOUR:  I do not know what other judges do, but I will just follow the law which says I have to give him documents, I have got to sign that I give them to him, and he signs that he got them.

143MS BROUGHTON:  Yes, Your Honour.

144HIS HONOUR: I do not understand why we have to do it, but if we have to - and the transcript will note that he signed that he has got the Sex Offenders Registration Act documentation, which is the notification and reporting obligations which will apply to him when he is released.

145We will forward that to the Chief Commissioner.  The difficulty in many of these is that for some reason that I cannot quite understand, he has been identified in the systems by his initials?

146MS BROUGHTON:  Yes.

147HIS HONOUR:  I have never made any order anonymising anything, or requiring anything.  I have considered carefully, and I will hear brief submissions, if there needs to be.  I can anonymise this whole sentence, as you well understand, simply by anonymising he gets another name, but I have not used the complainant's name.  Her name is not connected to the accused.  It may be that there is a basis for anonymising him so that that has the double effect of not knowing who it was, but I do not quite see why it would be the case.  Does anyone say that there is a risk of the identification?  Anything that might tend to reveal who the victim is if his name was - if this was case was known as Graeme Westbury v Queen?

148MS DUCKETT:  Perhaps my learned friend is best placed to answer that question.

149HIS HONOUR:  Do you know?

150MS BROUGHTON:  No, as Your Honour rightly points out, there is nothing to connect the complainant's name with Mr Westbury.

151HIS HONOUR:  Save that people might know him and know who his daughter is, that makes it plain.  Do you want to quickly ask?  I mean, I can just get some - this "GW" is not going to remain, it is going to become proper, he will just get another name, "Smith", "Jones", whatever.

152MS BROUGHTON:  I would be content if he were to be given another name it would ‑ ‑ ‑

153HIS HONOUR:  That is only if.  I do not have to do it.

154MS BROUGHTON:  No.

155HIS HONOUR:  Probably if we are entitled to know precisely who the man is that has committed the crime and has got the sentence, unless there was a powerful reason for it not to happen.  Just take a moment.

156MS DUCKETT:  Do you mind if I just speak with the complainant?

157HIS HONOUR:  Not at all.

158MS DUCKETT:  Thank you, Your Honour.  The complainant has indicated that it is fine if Mr Westbury's full name is - she does not have any concerns.

159HIS HONOUR:  Certainly.  I think that I will alter the records here so that the Sex Offenders Register Regulation, they have got to know his real name, not my pseudonym, and so that will be, the "GW" that is on the document he signed will be indicated to Mr Graeme Westbury, and the case will be that the Director of Public Prosecutions v. Graeme Westbury.

160MS DUCKETT:  Court pleases.

161HIS HONOUR:  Is there anything further required?

162MS BROUGHTON:  No, Your Honour.

163HIS HONOUR:  I am very grateful to counsel for their significant assistance in clearing matters up and engaging in the very helpful exchanges about a difficult matter from the very beginning and I am grateful to counsel for remaining a long way from their homes for so long.

164MS DUCKETT:  Thank you, Your Honour.

165MS BROUGHTON:  Thank you, Your Honour.

166HIS HONOUR:  If there is nothing further we will adjourn.  Mr Westbury can be taken.

167(Offender removed.)

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