Director of Public Prosecutions v Whitcroft

[2017] VCC 1712

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-00623 and CR-17-01994

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAVID WHITCROFT

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JUDGE:	HER HONOUR JUDGE HAMPEL
WHERE HELD:	Melbourne
DATE OF HEARING:	8 November 2017
DATE OF SENTENCE:	16 November 2017
CASE MAY BE CITED AS:	DPP v Whitcroft
MEDIUM NEUTRAL CITATION:	[2017] VCC 1712

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public	Mr P. Bourke	Office of Public Prosecutions
Prosecutions
For the Accused	Mr J. Mortley	Samantha Ward Pty

1David Whitcroft, this is the second time that you have come before this court, facing sentence for the sexual abuse of adolescent boys over whom you exercised authority and who had been entrusted, either by their parents or an institution, to your care.  You come to be sentenced today for three charges of indecent assault in respect of one victim, the first two of those charges relating to conduct occurring between October and December 1978, when he was 13, and the third in relation to him over the first two months of 1981; that is, in the period leading up to his 16th birthday.

2You also come to be sentenced for one charge of indecent assault in respect of the second victim.  This offence occurred over a decade later during the 1993 school year, when this child was 16 and under your care, supervision, and authority.  Eighteen months ago, on 3 May 2016, you were sentenced by His Honour Judge Allen on one charge of indecent assault of a boy under 16, three of sexual penetration of a boy under 16, and one of sexual penetration of a child between 16 and 18, who was under your care, supervision, or authority.

3That victim was aged between 14 and 16.  All charges related to a single victim.  He was aged between 14 and 16 and the offending concerning him occurred between 1981 and 1983.  That is, after the period covered by the charges concerning the first victim before me, and before the charges concerning the second victim before me and in respect of which now I am about to sentence you.  You have just completed the 18-month custodial component of the sentence imposed on you for that offending and your pleas of guilty to the charges before me resulted in your remand in custody at the expiration of that custodial component of the earlier sentence.

4His Honour Judge Allen also imposed a two-year community correction order as part of the sentence he imposed upon you and that CCO is in suspense, pending the imposition of sentence by me.

5Between 1973 and 1980, you were involved with Geelong College as a junior or beginner rowing coach.  You were friendly with many other staff and their families and you gathered a reputation as a person who could speak to and counsel adolescent boys.  You developed an interest in massage and you would massage boys, either as a form of stress management or as a part of their training and recovery regime from their sporting activities.

6The first victim was a pupil at Geelong College.  Through school and rowing, you were friendly with his family.  He was about ten when he first met you and you were a frequent and trusted visitor in the family home.  By the time he was 13, you had – with the active encouragement of his family – become a confidante.  His contact with you, or yours with him, was regular.  You would see him on most weekends and he would often speak to you by telephone as well.  Over those years, you engaged in conduct that, with the benefit of hindsight, can properly be described as grooming.

7There was some marital disharmony and forming of new relationships within the family.  He had become troubled as a result of that and with the family's encouragement, you had become a counsellor and confidante for him, to help him navigate through those new and changing relationships.  During counselling sessions, you would make body contact with him.  Initially, apparently innocuous touching of his knee or shoulder.  But the touching progressed to more intimate touching over time.  You introduced him to massages, ultimately encouraging him to take all of his clothes off during massage.

8You introduced oils and candles into the massages and they progressed from massaging his back and shoulders to his buttocks.  You were trusted at times to have him at your home on weekends.  And it was there that the first sexual assault, for which I must sentence you, occurred.  On that occasion, after the two of you had been doing something together in the garden, you went inside, you gave him a beer, and then suggested a massage.  Charge 1 occurred in the context where the massage became a sexualised massage.

9You moved from what could be seen as an orthodox massage to rubbing his inner thighs and buttocks, before turning him onto his front.  Charge 1 itself relates to what you then did, which was to perform oral sex on him until he ejaculated.  That was his very first experience of ejaculation.  After he had ejaculated, you continued to massage his penis with your hand.  And it is that specific conduct that constitutes Charge 1, but it was not all that occurred on this occasion and that I must take into account in assessing the gravity of the offending.

10Following your masturbation of him, you encouraged him to touch your penis and to masturbate you until you too ejaculated.  Afterwards, you told him he had not done anything wrong and what had happened was your secret; that is, the secret of the two of you.  Charge 2 occurred in the context where again you were trusted for him to be with you at your home.  Again, you performed a sexualised massage on him, before performing an act of oral sex on him once he had become aroused.  Again, that continued until he ejaculated.

11And again, it is that performing of the act of oral sex on him to ejaculation that is the specific conduct relied on for this charge.  There is again further context evidence.  At the same time as you were performing oral sex on the victim, you had him perform oral sex on you, until you ejaculated in his mouth.  There was then continued intimate touching throughout the night and in the morning further intimate touching and further acts of oral sex; you on him and him on you.  Again, both to ejaculation.

12I take into account in respect of this charge also, that it is representative not only of the other conduct, apart from the specific act, but that there were two or three further occasions of like conduct at around that period.

13For reasons outside your control, you had little, if any, access to your first victim from early 1979 until the end of that school year.  At the end of the 1979 school year and before the commencement of the 1980 school year, though, you had frequent contact with him.

14And it is during that period that the conduct the subject of Charge 3 occurred.  That is a course of conduct charge and it involves massaging and performing oral sex on your victim approximately 20 to 30 times over that period - the period of approximately two months during the school holidays and into the early part of the following school year - ending with, in a sense, an artificial date; that is, the date of the victim's 16th birthday.

15The victim did not tell his parents about any of this at the time.  In fact, the materials before me reveal that over the years after that, up until the time the victim was at university, you continued to have contact with him and to engage in sexual activity with him.  It was not until the late 1980s that he made his first disclosure about this to anybody.  Until then, it had been, as he described, "a secret, a heavy burden" that he bore.  It was not until many years later, approximately the year 2000, that he told his father something of what had happened.

16In fact, he told his father that his very first sexual experience had been with you.  And it was clear that in the context in which he revealed that, that he was talking about a time when he was underage.  In 2010, the victim's father confronted you.  You admitted to him that you had engaged in sexual activity with his son.  But you described it to his father as, "having an affair" with him. 

17In 1980, you left Geelong College and took up employment as a youth officer at the Sunshine Boys' Home.  You remained there until 1986.  And it was during that period that the sexual assaults on a child in your care occurred.  Those are the charges for which Judge Allen has already sentenced you. 

18Between 1986 and 1988, you left Victoria and took up employment at Rockhampton Grammar in Queensland as a sports coordinator, assistant resident boarding supervisor, and master in charge of rowing.  On the agreed summary of facts you continued, whilst there, to provide counselling and support to boys as a house master and tutor.

19By 1989 you had returned to Victoria, where you were appointed as a live-in tutor and boarding house master again at Geelong College, and you remained there until you were dismissed in November 1993.  It was during that second period at Geelong College that the sexual assault on the second victim for whom I must sentence you, occurred.

20Your second victim was, according to the agreed summary, a troubled boy.  He had been enrolled as a boarder at Geelong College having been previously expelled from the other private school at which his parents had enrolled him.  You were the tutor and boarding house master in charge of the boarding house to which he was assigned.  Again, according to the agreed summary, the way you related to the students included allowing them to drink alcohol and smoke cigarettes in your living quarters, and giving the students massages.  Again, in hindsight, some of this can clearly be seen as grooming behaviour. 

21In 1992 – your second victim's first year boarding at Geelong College – in addition to ingratiating yourself with students by allowing them to drink and smoke in your quarters, you began massaging this victim.  Initially the massages appeared to be simply therapeutic sporting massages.  At your direction, he would strip down to his underwear.  He described the massages as becoming more sexualised over time.  You would brush his penis and make out as if it were an accident.  He recalled that at times you were breathing heavily whilst that was occurring.

22The charge concerning this victim is, unlike those concerning your first victim, a single act.  He was on one occasion alone in his dormitory and you came in unexpectedly and found him on his bed masturbating.  He was surprised, stopped and took his hand off his penis.  You grabbed his penis, shook it from side to side for what he described as seven to eight seconds, and called him a “dirty little bastard”.  He finally asked you what you were doing and you let go of him and left the room.

23The following day, you called him into your office and returned to him a bottle of alcohol that you had previously confiscated from him, and said to him that maybe you had overstepped the mark.  It is this conduct that constitutes the single charge of indecent act in respect of this second victim.  It was not until the end of the following school year that this victim made a disclosure to a person in authority at the school, and the principal was ultimately notified.  Whether it was because of that, or because, as you told the police when you were interviewed, the principal discovered that you had continued to provide massages to boys, despite being directed by him not to do so, you were dismissed from Geelong College at the end of 1993. 

24It was not until January 2016 that you were arrested and questioned.  When confronted with the first victim's allegations, you admitted to only one incident with him, and said that you could not remember or provide specific details.  You said that you believed you would have performed oral sex on him, and you also said you believed it would probably have occurred at his home.  So far as the second victim was concerned, initially you told the police that you saw him masturbating but did not do anything and kept going. 

25You were then confronted with his version of events and you said it was not your memory of the incident but you conceded it was possible.  You acknowledged the language attributed to you could well have been something you had said.  And you confirmed to the police that you had been dismissed from Geelong College because you continued to massage male students after being directed by the principal not to do so.

26This offending for which I must sentence you is, therefore, on any analysis, serious offending, and particularly so in relation to your first victim.  At the time of the offending concerning your first victim, the conduct, which you have acknowledged by your guilty pleas, was characterised as an offence of indecent assault on a male person under 16.  By the time you committed some of the offences on the victim in respect of whom Judge Allen sentenced you, the penetrative offences, that is those involving performance of oral sex, were properly characterised by reason of amendments to the Crimes Act 1958 (Vic) as offences of sexual penetration of a child under 16, or sexual penetration of a child between 16 and 18 who was in a person's care or authority.

27Therefore, the acts of oral sex that you performed on your first victim are now described as acts of sexual penetration and they are now punishable by a maximum sentence of ten years imprisonment, not the five years imprisonment that applies to the offence of indecent assault.  The creation of a statutory offence of sexual penetration of a child under 16, whether the penetration is penile, vaginal or some other form of sexual penetration, was clearly recognition by parliament of the greater gravity of an offence involving an act of penetration, than other contact sexual offences encompassed in the offence of indecent assault.

28I take into account, therefore, in assessing the seriousness of the charges concerning your first victim, that they would today be characterised as offences of sexual penetration of a child under 16.  It places those indecent assault charges concerning your first victim at the higher end of gravity for such offending; that is, that they are serious examples of the offence of indecent assault.  I also take into account in assessing the seriousness of the charges concerning your first victim, that Charges 1 and 2 are representative charges; that is, representative of other like conduct occurring at the same time or over a period of time. 

29Charge 3 is a course of conduct charge encompassing 20 to 30 like acts.  Whilst the five year maximum sentence applicable to each of the indecent act charges concerning your first victim set the outer parameters of the sentence that I must impose for each of those charges, I also take into account in determining the appropriate sentence, the changed attitude of the law and the community to assessing the gravity of such offending, and the appreciation that now exists, and which was so amply demonstrated by the victim impact statements made by your first victim and his mother in this case, of the serious long-term harm caused to children who are the victims of sexual predation at the hands of adults who they were entitled to trust.

30I have heard many powerful, moving and eloquent accounts from victims and their families of the harm caused to them by sexual offending by an adult who they trusted, but I do not think I have heard a more tragically clear-sighted account of the harm caused, and of the understanding of how your victim's life, and his family's life, were, as a result of your conduct, so different from what they should have been.  I can only hope, despite my woefully inadequate words to them when they read their victim impact statements last week, that as they have navigated their way through the justice system that they felt they had been listened to and respected, and are now perhaps better able to feel they have some control over their lives. 

31The other aggravating features in respect to this offending are also significant.  So far as your first victim was concerned, it occurred over a considerable period of time.  There was grooming.  For both victims you made them complicit in a guilty secret.  With the first victim by telling him it was your secret.  With the second victim by returning his contraband alcohol and telling him you thought you had overstepped the mark a bit.

32You abused not only their trust but that of their parents.  The first victim's parents had actively encouraged you to counsel him at a time when he was troubled and he needed adult support and guidance from a respected adult, someone other than his own parents, and someone he could relate to.  You were aware of this, so it was a gross breach of trust, not only in

respect of him but also in respect of his parents.

33Whilst the single charge concerning the second victim is absent some of those aggravating features present in relation to the first victim, there are also significant features which indicate its seriousness.

34Again, you were in a position of authority over that student.  You were the boarding master.  You knew he was vulnerable.  He was a boarder because he had been expelled from one school and was engaging in troublesome behaviours.  You counselled him and massaged him and accustomed him to being touched by you when he was all but naked.  You allowed him to smoke and drink.  And you took gross advantage of him, when he was already doing something that was regarded as wrong; namely, masturbating.

35You had already engaged in the course of conduct with your first victim during your earlier period of service at Geelong College and in the course of conduct offending with the child at the Sunshine Boys' Home, before you committed the act on the second victim - for whom I must sentence you - during your second period of employment at Geelong College.

36It is clear, therefore, that subject to considerations personal to you, just punishment, denunciation, and deterrence are significant factors which must be given significant weight in sentencing.

37In his careful and very sensitive oral submissions, Mr Mortley relied on the following matters:  your pleas of guilty; your acceptance – albeit belated, but nonetheless sincere – of the wrongness of your conduct and of the long-term harm that was caused to your victims; your age; your poor health; your continued family support; the absence of like offending since the offence on the second victim - for whom I must sentence you - in 1992; and the assessment of the psychologist Pamela Matthews, in relation to your risk of reoffending.

38Dealing then with those matters.  You are now 70 years of age and in poor health.  When a child, you contracted rheumatic fever, which left you with a serious weakness in your heart.  You grew up believing or understanding that you were unlikely to live well into adulthood.  That is a considerable burden for anybody to carry.  You embarked upon your adult life – it would appear – with a philosophy that you needed to or wanted to put into life as much as you could and get out of it as much as you could, because you did not think you would have much time to enjoy adult life.

39You held various positions of employment and it would seem changed employment not because of fecklessness, but in order to take on new challenges or opportunities.  You had had a long interest in rowing, although your own capacity to row had been significantly hampered during your schooling and your young adulthood by reason of your serious heart condition.  But you became involved in rowing coaching and training and moved in circles of people who were actively involved in rowing and rowing clubs.

40And that clearly became a significant part of your life.  Ultimately, that led to your being engaged at Geelong Grammar, engaged in rowing, obtaining employment then – because you perceived that you had a talent or a gift in counselling children – to work in the Boys' Home, then to get employment at Rockhampton Grammar, and then back at Geelong College.  After the termination of your employment there in 1993, you took up other employment where you did not have direct contact with children.  However, you did continue your involvement in rowing and sporting circles, where you were still in contact with young boys.

41In addition to your heart problems, you have other health problems.  You have had to have replacements of your aortic valves and your mitral valves.  By 1994, you had had a pacemaker inserted.  You have suffered some other significant medical conditions in addition to your cardiac problems.  And you suffered significant heart failure well before you were questioned by the police.  And that appears to have had not only a further deteriorating effect on your health, but also - it would appear - has significantly affected your memory since then.

42You indicated by the time of committal, in respect of your second victim, that you intended to enter a plea of guilty in respect of him.  But it was not until the time your trial was listed in respect of the first victim and following pre-trial argument and a ruling adverse to you in respect of the admissibility of evidence in relation to your conduct with other victims on the trial in respect of the first victim, that serious negotiations took place, which led to the resolution of all of the charges that you faced in respect of the first victim and the entry of your guilty pleas.

43Although they are late pleas - as I said at the time – I repeat that in my view, a plea of guilty to sexual offences, particularly when there is evidence, as there was here, of the significant harm suffered by the victim, is something that must be given considerable weight.  Your plea of guilty is not only an indication of wrongdoing, and a vindication of the truthfulness of the victim, but is also entitled to a considerable weight because it does spare the victim the considerable ordeal of having to relive the events and recount them, of being questioned about them, and of facing the indignity of being challenged on their truthfulness.

44It was particularly important in this case too, because the first victim has had a very troubled life, as his victim impact statement made clear.  And therefore, he was at considerable risk of facing a cross-examination which could only have made him more distressed about the difficult life he has had since.  So, all of that does require considerable weight, despite the lateness of the guilty plea.  I also accept the submissions made by Mr Mortley and supported by what is contained in the reports of the psychologist Pamela Matthews that you do now accept the long-term harm caused to your victims and the potential for the causing of long-term harm by the conduct in which you engaged.

45And I accept that you are starting along the path of understanding that what you had previously called "relationships" with your first victim here and with the victim in respect of whom Judge Allen sentenced you, were not that at all, but were rather the predatory behaviour of an adult male, who should have known that he could not engage in sexual activity with a child.  So, you are coming to an understanding of that.  And that means a long and painful process of undoing many of the belief systems that allowed you to rationalise your behaviour for so long.

46You are fortunate to enjoy the loving and understanding support still of your sisters.  They both wrote of the shock it was to them to discover this secret life of yours and to discover your offending, and of their struggles to seek to reconcile the David Whitcroft they knew with the person who was pleading guilty and being sentenced by the courts.  They have not sought to rationalise your behaviour or to justify it, but have continued to offer you their love and support.  And that clearly speaks well for the person you must be apart from this offending.

47Ms Matthews has provided three reports in total.  She provided one initially to His Honour Judge Allen, which dealt just with the offending in respect of the one victim that was before him.  And she had carried out a risk assessment using the well-recognised tools for assessment of risk of future sexual offending, on the basis of this single victim.  She came up at that stage, therefore, with an assessment that your risk of reoffending was in the low range.  She was then made aware that there were charges pending in respect of the two victims who are now the subject of the charges before me.  She provided a revised assessment for His Honour Judge Allen, and has now provided an updated report or assessment for me for sentencing purposes here. 

48Having regard to the number of victims, that is three, the extended period of time over which the offending occurred, and the fact that the initial victim with whom Ms Matthews was dealing in her assessment of you was the middle in the time sequence of the offending, she has revised her assessment of risk of reoffending to what she says low to moderate, but I would take as actually being properly described as moderate, having regard to the additional information.

49I accept her assessment that your risk of reoffending is moderate.  There is no evidence before me that you have engaged in any further offending behaviour with boys since the conduct that is the subject of the last charge before me.  In addition to your coming to accept the long-term harm to your victims, she is of the view that there are moderating risk factors, particularly the passage of time, your age, the absence of further complainants, the stability of your lifestyle prior to your incarceration, and the support system, as I indicated, from your systems.  They are all obviously accepted by me as protective factors.

50She does, however, indicate that you would benefit from participation in a sex offender treatment program, and it is a matter of considerable concern that despite an initial recommendation for that and the recommendations being echoed by His Honour Judge Allen when he originally sentenced you, you have not been given the opportunity to participate in any sex offender treatment programs to date, because Corrections took the view that as you had other charges pending, they needed to be dealt with before they could put you into a program. 

51I accept, therefore, that it is not through any reluctance or fault on your part that you have not yet participated, but I do strongly recommend the Corrections authorities ensure that you are assessed as soon as possible for participation in a sex offender treatment program, and that you are given every opportunity to participate in one, so as to address what remains of appreciable risk of reoffending behaviour, despite the protective factors that have been identified. 

52Ms Matthews also identifies or diagnoses you as currently presenting as depressed, within the criteria identified in DSM-V, that is, suffering a major depressive episode of mild degree.  It is clear that, having regard to your age, your poor health, the nature of the offences, and the major depressive episode, to a great extent, as she says, reactive to your circumstances, but significant nonetheless, that all of those matters make imprisonment more onerous for you than they would for anyone without these factors being present, and I take that into account. 

53You were in your late sixties before you went to prison for the first time.  You have committed no other offences, other than the sexual offences.  Clearly, for a person of your age, who had otherwise believed that he was living a good, that is, an honourable life, imprisonment at that age is a burden.  You have what Ms Matthews described as a compliant aspect to your personality, which has meant that you have managed to settle into prison life relatively well, but nonetheless, incarceration for an older person, and who has not previously had any experience of it, is a burden or punishment in itself.

54I accept all of those matters identified by Mr Mortley and addressed.  There is just one matter I do want to deal with specifically.  At one stage, it seemed to be suggested, partly in Mr Matthews' report and partly in the written but not the oral submissions of Mr Mortley, that there was some correlation between your coming to appreciate in your thirties, at the time of the offending in respect to the first victim, that your sexual orientation was homosexual, not heterosexual.   

55I want to make it very clear that there is not a correlation between homosexuality and paedophilia, or that subcategory of paedophilia sometimes called hebephilia.  Any suggestion in the materials that there is a connection is something I want to make very clear I am specifically rejecting.  They are two very different things, homosexuality and paedophilia, or hebephilia.  There is no evidence of any link between the two, and I do not sentence you on the basis that your discovering or coming to terms with the fact that your sexual orientation was homosexual had any bearing on paedophilic, as opposed to age appropriate same-sex relationships.

56That is not to say that you are to be punished for any of that, or that I take what I saw to be a subtext of that in the submissions as a matter adverse to you.  I just wanted to place on record very clearly my disavowal of any suggestion that that could explain, or provides an evidentiary foundation for explaining the behaviour.  This is nothing other than inappropriate paedophilic or hebephilic contact with underage children, and you, a man without mental illness, without intellectual disability, without any abuse of drugs of alcohol which might otherwise cloud your judgment, and without any history yourself of sexual abuse which might otherwise have distorted your belief systems and led you to rationalise this behaviour. 

57The absence of those factors - although none of those would be mitigators, but the absence of those factors also count as protective factors in your favour, in assessing your prospects for rehabilitation and looking at the acceptance of your risk of reoffending as being in the moderate category.

58It was acknowledged by Mr Mortley that no sentence other than one involving a term of imprisonment, and a significant one, was appropriate.  The sentencing options available to me are more limited than those that were available to Judge Allen at the time that he sentenced you.  Since he sentenced you, the Sentencing Act 1991 (Vic) has been amended, so as to reduce the maximum term of imprisonment available to be imposed in combination with a Community Correction order to 12 months. That clearly would be inadequate for the offending that is before me.

59The fact that His Honour Judge Allen imposed a combination sentence, with the Community Correction order, does create a difficulty in sentencing for me.  I have decided that in the circumstances, what I should do is impose the sentences that I consider are appropriate for these offences, making appropriate allowance for cumulation and concurrency, so as to conform with the principle of totality. 

60I agree with the prosecution's submission that it is not necessary to impose a disproportionate sentence in order to give effect to paramountcy of protection of the community, which, by reason of the serious sexual offender provisions under which you come to be sentenced is the primary sentencing consideration I must take into account.

61I have given anxious consideration to how to take into account the fact that you have served an 18-month term of imprisonment in respect of the other victim, and that the remainder of that sentence in respect of him, the Community Correction order is still pending.  Had all three victims been before a sentencing court at the one time and I had been the sentencing judge, I would have considered that some degree of concurrency between the sentence in respect of that victim, the one in respect of whom Judge Allen sentenced you, and the two victims in respect of whom I am sentencing you would be appropriate, in order not to offend against the principle of totality, and in order to ensure that the sentence was proportionate to the overall offending.  Had charges in respect of all three victims been before me as a sentencing judge, I certainly would not have considered a combination sentence appropriate, having regard to what is now the maximum of 12 months imprisonment.  I would not have considered it appropriate, had the maximum of two years imprisonment that was available at the time that Judge Allen sentenced you, either appropriate, no matter what type of community correction order, no matter how long it was, and no matter how onerous the conditions on it were after that. 

62I say that because it is important for it to be acknowledged, that in sentencing you I must form my own assessment of what is the appropriate sentence, and I do so against a different sentencing landscape to that which applied at the time that Judge Allen sentenced you.  Not only has there been that change to the maximum term of imprisonment attached to a combination sentence, but the recent decision of the High Court in the case of Dalgleish[1] has made it clear that what was an often constraining factor on the exercise of sentencing discretion, namely, elevation of current sentencing practice to the level it had been by the Court of Appeal had circumscribed the discretion that sentencing judges were able to exercise, and I am now freed of that straightjacket.

[1]Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41.

63So the principles I earlier identified, the reference to the maximum sentence available, and the understanding of community standards still apply, but I am no longer constrained in the way Judge Allen was by current sentencing practice.  There is clearly a need for a consideration of parity in relation to the assessment of gravity of offending as made by Judge Allen and me in respect of the different offences.  But I must make sure that I consider the sentence that I think appropriate, having regard to the circumstances that I have identified.

64And, in exercising my discretion and in this different sentencing landscape, I have come to a different view as to the range of appropriate sentence available for each of the individual offences.  In reaching the sentences that I have, I have also been influenced in part obviously by what was contained in the victim impact statements of your primary victim, of the first victim and of his mother.  The victim impact statements conveyed so clearly the shame and guilt that this victim had felt and carried with him all his life, believing that he was responsible in whole or in part for your behaviour and carrying the burden of a very heavy and guilty secret.

65And he described in graphic detail the destructive and self-loathing behaviours that he engaged in throughout his adult life as a result.  Although one cannot help but be moved by and influenced by what was contained in that victim impact statement, I want to make it very clear that the victim impact statement really simply serves to reinforce my own analysis of the objective seriousness of the offending.  And so whilst I have been influenced by what has been said, I do not consider that I have been unduly influenced or given it disproportionate weight.

66Coming back to the community correction order attached to Judge Allen's sentence.  I do not know, and I cannot speculate as to what might happen with that after I have sentenced you.  The Sentencing Act 1991 (Vic) does provide power for Corrections, or for you to apply to vary or cancel a community correction order, if circumstances change. These sentences that I am about to impose may well give rise to different considerations as to the appropriateness or desirability of you serving a community correction order at the end of my sentence.

67Because the custodial part of the sentence in respect of the other victim has already been served, I cannot order partial concurrency with it.  But I have moderated the sentences for these charges to take into account the fact that had you been sentenced in respect of all three victims at once, there would have been an allowance by me, had I been the sentencing judge, for some concurrency.

68I have decided that I should fix a non-parole period by reference to the head sentence that I impose on you.

69Taking into account the fact that there is as yet an unserved community correction order still pending in respect of the other sentence, I do not consider it appropriate to impose an unnaturally short non-parole period or to fetter my consideration of what should be the appropriate non-parole period for this offending by reason of the pending community correction order.  It is a difficult and anomalous position. 

70Had you been sentenced to a term of imprisonment with a non-parole period fixed in respect of the matter before Judge Allen, I would have then been in a position, in accordance with what the Sentencing Act 1991 (Vic) requires, to fix a new head sentence in respect of, or by making partial cumulation or concurrency orders in respect of all offending, and to fix a new single non-parole period in respect of the past offending and the current. There simply is not the power to make an adjustment between a non-parole period for new offending, for a subsequent sentence, and a community correction order.

71So in a sense, I have to work with that but I still, as I understand my duty, must impose sentences that I consider appropriate for this offending but taking into account the fact that there is a CCO hanging, as yet unserved, because of a previous sentence.  If there is to be consideration of any adjustment to that, that is clearly not a matter for me.  The reason I have laboured the point is simply to identify that I have been aware of the problems that this creates.

72I have done what I consider I have statutory power to do, and is appropriate in respect of my sentencing, but understanding that there may well be a need for consideration as to whether that requires a reconsideration of the appropriateness of what is outstanding in respect of the CCO.  And I have set out what I can of my reasoning, if it is to be of any benefit to any subsequent sentencing court.  That then leads me to the sentences themselves.  Can you now please stand.

73David Whitcroft, on the three charges on the first indictment, and on the single charge on the second indictment, to which you pleaded guilty, you are convicted.  On the first indictment on Charge 1, you are sentenced to be imprisoned for a period of two years.  On Charge 2, you are sentenced to be imprisoned for a period of two years and six months.  And on Charge 3, you are sentenced to be imprisoned for a period of three years.  On the second indictment, on the single charge, you are sentenced to be imprisoned for a period of nine months. 

74I direct that the sentence on Charge 3 on the first indictment is the base sentence, and direct that 12 months of the sentence on Charge 1, and 18 months of the sentence of Charge 2 on that indictment, and six months on the sentence on the charge on the second indictment be served cumulatively upon each other and upon that base sentence.  That makes a total effective sentence of six years, and I fix the period of three years as the time that you must serve before being eligible for parole.

75I declare that you have spent 14 days in pre-sentence detention and direct that that be counted and reckoned as part of the sentence already served. I declare that you are sentenced as a serious sexual offender in respect of all charges on both indictments, and I declare pursuant to section 6AAA of the Sentencing Act 1991 (Vic) that but for your pleas of guilty, I would have sentenced you to a total effective sentence of eight years, and I would have fixed a non-parole period of five years. Any further orders required to be made?

76MR MORTLEY:  No, Your Honour.

77HER HONOUR:  Is the arithmetic correct?

78MR BOURKE:  Sorry, Your Honour, I don't seem to have checked that.  Correct, Your Honour.

79MR MORTLEY:  Agreed, Your Honour.

80HER HONOUR:  Thank you.  Can you remove Mr Whitcroft, please.  Don't, please be silent.  Mr Mortley and Mr Bourke, can I thank you both, this has been one of the more emotionally difficult matters and I think the way each of you dealt with it and assisted me was exemplary.

81COUNSEL:  Thank you, Your Honour.

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