Director of Public Prosecutions v White (a pseudonym)

[2022] VCC 295

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARCUS WHITE (A PSEUDONYM)

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	11 March 2022
CASE MAY BE CITED AS:	DPP v White (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2022] VCC 295

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 Prosecutions	Mr A. Albert
For the Accused	Mr I. Polak

HER HONOUR:

1Marcus White[1], a jury has found you guilty of one charge of committing an indecent act with a child under 16, which was a course of conduct charge, three charges of incest, five charges of common law assault and five charges of sexual penetration of a child under 16.

[1] A pseudonym.

2The maximum penalty in relation to Charge 1, the course of conduct charge, is 2 years' imprisonment. The maximum penalty for incest is seven and a half years imprisonment.  In relation to Charge 3 on the indictment, which relates to your sister - the complainant, Angela White[2] - the maximum penalty is at large, but the maximum penalty for the remaining charges of common assault is five years' imprisonment. The maximum penalty for sexual penetration of a child under 16 is 10 years' imprisonment.

[2] A pseudonym.

3You were acquitted by direction of one charge of incest and were acquitted by the jury in relation to Charge 13, a charge of common law assault.

4The facts underlying your offending are as follows. Your two victims were firstly your sister, Angela White, and secondly, Mackayla Edgerton[3], with whom you were in a relationship. I will begin with the charges relating to Angela White.

[3] A pseudonym.

5This offending took place between 1 March 1994 and 12 December 1995, at which time you were aged between 14 and 16 years and your sister was aged between nine and 11 years. Charge 1 relates to conduct which involved you touching Angela in and around her vagina. That conduct started when you asked Angela to come into your bedroom, asked Angela to come close, put your hands down the front of her pants, told her to keep quiet and not say anything - although she asked you to stop - and then continued to keep your hands in her pants for a couple of minutes. She told the court this conduct of feeling in and around her vagina was repeated in your bedroom, under the house, and continued on numerous occasions over the period of time that I have outlined.

6Charge 2 is a charge of incest. This relates to an incident where in about March 1994 you owned a Ford sedan, invited Angela to come in and look at it and got her to get into the backseat.  You moved in next to her, told her to be quiet, put your hand over her mouth, undid your pants to expose your penis, moved her head to your lap and introduced your penis into her mouth.  You became angry when she tried to pull away and then stopped. You also tried to touch her chest area and she told you you should be touching your girlfriend's breasts and not hers, as she did not have any. You threatened her if she told anyone and Angela subsequently did not tell anyone.

7She said that there were other occasions when you did introduce your penis into her mouth. These were uncharged acts and occurred in another car that you owned, under the house.

8Charge No.3, the charge of assault, was an occasion when your mother, April White[4], was going out and Angela wanted to go with her, as she did not want to be left alone in the house with you. She ran after her mother who drove off, and then she walked back up the garden path to the house, where you were standing, blocking her way. Angela tried to scream. You put your hand over her mouth and nose, threw her down on the path and positioned your body on top of her. She could not breathe. She tried to pull your hand from her face. She was terrified and she could not remember when this ended or how long it lasted.

[4] A pseudonym.

9Angela also gave evidence in relation to Charges 4, 5 and 6. Charge 4 was a charge of incest which was where an acquittal was entered by direction because evidence was not given of a complaint of digital penetration, which underlaid that charge, however Angela gave evidence about an occasion that you took her under the house. The house was built on a slope and at the back of the house the slope was of sufficient steepness that there was a room underneath the house, which was where she said you took her. She said that you positioned her on the ground, removed her pants, and then placed your penis into her mouth and then placed your penis into her vagina. These actions underlie Charges 5 and 6; charges of incest.

10Angela, on that occasion, said she was going to tell her mother. You threatened her and said that you would kill her. Eventually you left, locking her under the house in the dark, but she knocked on the ceiling and your other brother, Adrian[5], came and let her out.

[5] A pseudonym.

11Towards the end of the offending period Angela spoke to her mother in the kitchen, where there was a television, and on that television was a report about a man who had sexually assaulted his niece. She wrote a note to her mother that what that man had done was what you had done to her. Your mother looked at the note, put it in her pocket, then went outside to hang out the washing; Angela following her and trying to speak to her. She said her mother ignored her but later told her that she did not know who to believe, as you and Angela were both her children. She spoke of shame to the family, and told Angela not to tell her grandmother because the shock would kill her, or to tell her father because he would kill you and end up in gaol himself. Angela believed this and ultimately told no one.

12In 1996, when she was in Grade 6, Angela had a friend, Jessica[6], at whose house she spent a great deal of time, and told Jessica’s mother, Margaret Cusack[7], that she was scared of her brother, that he hurt her, and on one occasion you and your mother ended up staying with the Cusack’s. When she was older Angela told a boyfriend and another boyfriend of you sexually abusing her. Ms Cusack, and the two boyfriends gave evidence on the trial. Your mother gave evidence on the plea denying any complaint by her daughter, Angela, but it is clear from the jury verdict, in my view, that this evidence was not accepted. It is important in terms of the ultimate effect that your offending had on your sister, that I make some comment about the fact that Angela was not believed by her mother, which simply added to her suffering.

[6] A pseudonym.

[7] A pseudonym.

13Remaining at this point in time in summarising the offending, Angela - in 2006, after the death of her grandmother - decided she would report you to police and arranged to attend a police station to make a statement. Mackayla Edgerton accompanied her but at that time the police officer who she was going to speak to was out attending an emergency, the appointment was cancelled, and Angela was unable to maintain the courage to come back. However, in 2016 she did report your offending to police and made a written statement, as ultimately did Mackayla Edgerton.

14Charges 7 to 16 on the indictment related to offending against Mackayla Edgerton.  There was a verdict of not guilty in relation to Charge 13. Mackayla Edgerton was five days younger than Angela.  She ultimately lived with you and your mother at your house in Seville. Indeed, Angela was also living there at the same time.

15The offending against Mackayla took place between 31 March 1999 and
19 October 2000. During that period of time you were aged between 20 and 21 and Mackayla was aged between 14 and 15.

16The evidence given by Mackayla was against the backdrop of the overall relationship between you and Mackayla. There were a number of uncharged acts that very much provided a backdrop or a setting to the charged offending.

17Mackayla began staying overnight at your mother's house at Seville, when she was in Year 9 at High School. She dropped out of school ultimately because she said you told her that school sluts had boyfriends inside and outside school and if she was only there for you she would drop out of school to prove it, and she did so. It was Mackayla’s evidence that you mostly did not allow her to leave the house unless you went too, or gave her permission. The house had a telephone landline and you would not allow Mackayla to use the telephone unless you had your ear pressed up against the receiver when she was talking.  The phone had a PIN for outgoing calls and Mackayla was not given that PIN, nor did she have a mobile.

18She gave evidence that there were regular incidents of verbal and physical abuse in the relationship she had with you; the first being when you slapped her across the face, which was shortly after the relationship began. She said that when she told you she wanted to go home you would take her to the front door and smash her face against the door and tell her that the only way she could leave would be by going through that closed door.

19Charge 7 relates to an occasion when you and Mackayla were in your bedroom.  You pulled her underpants aside. She was sitting on top of you and you penetrated her vagina with your penis, during which time your mother entered the room and then hurriedly exited again.

20At the time of the offending in Charge 7 Mackayla was 14 years old and the penetration took place on the floor of your bedroom. This was the first time the two of you had sex together.

21Charge 8 relates to the second time you and Mackayla had sex, which was on your bed. You lay on top of her, pulled her underwear aside and inserted your penis into her vagina.

22Charge 9 is a charge of assault. This occurred when you, one of your friends and Mackayla were in your bedroom and you asked her for sex, which she refused. You struck her and Mackayla taunted you about a recent physical altercation you had had with a friend of a neighbour, where you were hit, and said to you that you had run and 'cried like a girl'. You became angry and jumped on Mackayla, saying that you were 'bashed like a man', that you got 'pub bashed' and that you were going to bash her like a man, you grabbed hold of Mackayla by the head and smashed her head against the wall.

23Charge 10, another charge of assault, occurred when you and Mackayla were in your bedroom. You were sitting on the bed and she was on the floor, on the opposite side of the bed, and spilt your cannabis mix. You called her 'a fucking useless bitch', picked up scissors and threw them at her. They opened slightly and lodged into Mackayla’s skin on her leg, which began to bleed. She pulled the scissors out of her leg and you told her it was a pity you had missed. She used a top to stop the bleeding and soak up the blood. She still has a small scar on her leg from the incident, which was shown to the jury.

24Charge 11, a charge of assault, occurred after a friend of Mackayla’s, Angus[8], came to the house to visit her. You told Mackayla that if he returned she was not allowed to hug Angus, who was a close friend.  He did return and gave Mackayla a 'hello' hug, which you saw. When he left you immediately punched Mackayla to the face, picked her up and threw her down the hallway then kicked and punched her.

[8] A pseudonym.

25Charge 12 relates to an incident revolving around a man who lived in Wandin from whom you purchased cannabis. On one occasion you and Mackayla were at his house and the three of you smoked cannabis together. The man in question was wearing shorts and his genitals were visible. On leaving the house you asked Mackayla, in a joking way, whether she had seen the man's penis.  She said she did and you then dragged her across the road and there kicked and punched Mackayla for noticing the man’s visible genitals.

26Charge 14 is another charge of sexual penetration of a child under 16 and this occurred when you drove a friend to Mount Buller for the day during the snow season, for which you were paid, Mackayla accompanying you. You parked in the carpark and then a friend went up the mountain to ski but you and Mackayla played in the snow near the carpark.  You suggested that you and Mackayla have sex in the snow.  Mackayla said that she feared your good mood, at the time, might change if she refused and the two of you moved into bushes, away from people who were walking around. You made Mackayla get onto her hands and knees. Even though she wore gloves they were in direct contact with the snow and became soaked. You then inserted your penis into Mackayla’s vagina from behind and had sex with her. Mackayla’s hands became frozen during this period of sexual activity.

27Charge 15 - again a charge of sexual penetration of a child under 16 - occurred in your bedroom. You suggested that you and Mackayla use a personal back massager as a vibrator; the massager being in the shape of a metal rod.  Mackayla refused to allow you to use the massager on her but it was agreed it should be used on you and Mackayla, at your request, inserted the massager into your anus.

28Charge 16, which is a further charge of sexual penetration of a child under 16, related to an incident when one night you and Mackayla were driving in your car and you took hold of her head and put it in your lap, introducing your penis into Mackayla’s mouth. It was Mackayla’s evidence that you did this because you had heard stories about other men that you admired getting their girlfriends in fact to do this.

29As I have said, the relationship with Mackayla involved a great deal of backdrop, some of which I began to describe before going into the particulars of the charged offending. Returning to that, Mackayla spoke of your mother's hoarding in the house and the fact that it was impossible, because of all the junk and rubbish piled up in many of the rooms, and certainly in the hallway - to get out of the front door. Many of the windows were unable to be accessed inside or out. Essentially she had said there were two useable doors to exit the house, both had security doors that could be locked by snibs and a key and that the house would be locked with a key if she was in the house alone.  She could only leave the house if she found a window to climb through.

30She said that you would get angry with her if she did not want to have sex and would verbally abuse her and sometimes throw objects at her. On one occasion you beat her with a piece of 2 x 4 timber in a cylindrical poster holder during a barbecue at the house attended by your father, who remonstrated with you. On another occasion you hit her with a can after she had taken a sip of alcoholic drink from it.  This was done in front of friends.  She said you would make her sleep on the floor.  On occasion you would get on top of her, beat your chest and beat her.  You told her that you were king and you were a God.  On three occasions you woke her, dragged her out of the house and told her to sleep outside, like a dog. You would not allow her to shower. She stated at one stage she did not shower for months and was only able to do so when you had care of your young son, Jeremiah[9], in that Mackayla would take care of him. Getting to the shower and shower with him. Also, she was unable to brush her teeth.  She gave evidence that she lost a great deal of weight and ultimately was made to wear your clothing, which covered up bruising on her arms and legs from your assaults of her.

[9] A pseudonym.

31The relationship ended ultimately when Mackayla was 15 and her father - who, during this time, was living in New Zealand - came to Australia for a visit and called the house phone asking to speak to his daughter. Mackayla hid under the kitchen bench to speak with him to hide from you, as you were in bed at the time. Mr Edgerton said he was nearby and wanted to see Mackayla and Mackayla asked April to unlock the front door so that she could leave the house and see her father. April, after refusing, eventually did this, and Mackayla spent the day with her father.

32Mr Edgerton said that he was not happy about the relationship that Mackayla was in and returned to the house with her. Mackayla was carrying the clothes her father had bought for her and he briefly met you, April, Angela and Adrian outside the house. When Mr Edgerton left you asked Mackayla if that really was her father and essentially tried to infer that it was some other man that she was meeting.  Ultimately your comments about her father angered Mackayla. She ran from the house, followed by Angela, and the two made their way to Mackayla’s mother's house in Seville. The next day, when, Mackayla was at a bus stop with Angela you drove up to them in your car and ordered Mackayla to get into your car. Mackayla and Angela ran away into a wooded area, and there was then a confrontation where Mackayla and Angela waved sticks at you to make you leave. Which you did.

33That essentially is a description not just of the charged offending but of the relationship between you and Mackayla, the nature of it, which forms a particular backdrop to your offending against her and which is very relevant in terms of the sentencing exercise I must undertake.

34I now turn to the victim impact statements of both Angela and Mackayla.

35Angela wrote in her victim impact statement that she suffered from constant cystitis due to your continual sexual touching of her when she was a child.  She said she never suffered from it again after she left home. She continues to have an injury to her lower back from when you slammed her into the brick garden path.  She talked about what it was like living with your mother, and she said she was not always a hoarder but her whole condition worsened after she disclosed your abuse to her. She stated:

'The violence in our home grew and my mum's mental health deteriorated.  This left the house we lived in to become full with rubbish.  I lost the mother I knew and had before I told her'.

36She said:

'I felt that Marcus began to gain control over our house as he grew to be physically stronger than Mum.  He started making claims that he was the king and he was God.  Although we did not play into this his violence left us no choice'.

37Angela wrote that she has an ongoing fear 'that my brother will hurt me'.  As a result of the horrible environment it would seem that she was living in with you and her mother, Angela left home when still in high school.  It was evident when she was giving evidence that Angela White is an extremely intelligent woman, however she could no longer attend school once she left home.  She had to work and, as she said, keep a roof over her head. She said she eventually completed VCE but was unable to go on to university, as she had planned, as there was no online option and she had to work to survive. She said:

'I wasn't prepared for a life of going to work full time to support myself'.

38Ultimately the lack of a further education has continued to affect her employment and her capacity to live comfortably and enjoy a career that undoubtedly her intelligence would have allowed her to have. She has had, unsurprisingly, unsuccessful relationships with men due to intimacy and trust issues. She said when men raise their voice, even when not directed at her, she drops to the floor in a fetal position and covers her head. She said:

'This is also the automatic reaction to sudden loud noises or somebody catching me by surprise.  I have been diagnosed with severe depression, anxiety and post-traumatic stress disorder.  I have also been suicidal on and off since I was 14'.

39Angela wrote of words, smells and actions that can trigger the terror she experienced at your hands and she said:

'I suffer from insomnia, night terrors and flashbacks which have affected my sleep for more than 20 years.  The feelings of worthlessness, shame, being unemployed and rejection have been with me always.  These feelings were made worst by the fact that my own mother didn't believe or help me when I told her what was happening'.

40At one stage Angela developed a severe alcohol dependency. On two occasions she has attempted suicide. She has had, and continues to have, battles with Post-Traumatic Stress Disorder, anxiety and depression.  She also found the experience of giving evidence and being cross-examined -both at committal and at trial - extremely traumatic.

41I accept that a great deal of the immense pain and anguish experienced by Angela is derived not only from the trauma of being sexually assaulted by you when she was a little girl, but by the continued rejection from her mother, and I note she made particular mention in her victim impact statement that 'what has been most painful was having my mother testify against me'.  She stated:

'I have felt absolutely no remorse from Marcus still, 25 years later, and he still won't own up to what he has done to me and my life.  I was given a life sentence of pain and suffering from the day I became his victim'.

42I note that for many years now Ms White has had an intervention order, which I understand is for life, out against you.

43In her victim impact statement Mackayla Edgerton said that after she left you she was unable to move home because she was scared to live in Seville, where her mother was and where you also were. She said that she became very angry and put on a hard front so that people could not hurt her again. She became a stripper so that she had power and dominance over men. She stated:

'I had a lot of trust issues and so I had a lot of trouble getting into relationships'.

44She turned to drugs, saying she took virtually every illicit drug available except for heroin. She said:

'I would go really hard to block it all out and it's done some irreversible damage to my health'.

45She stated that she has reoccurring terrifying nightmares. She continues to have anxiety which she says also affects her son.  She said:

'I had a lot of trouble telling anyone that this happened to me'.

46She also said:

'I surrounded myself with men when I was in high school because I knew that would intimidate him.  It's hugely affected friendships, relationships, jobs'.

47She said that she struggles to walk away from violence with men and gets involved with other people's issues involving male violence. She says:

'This isn't the life I would have chosen.  I have no control over it.  I go into fight or flight and it's very, very scary.  It can take me days to calm down from it.  I don't want to hurt anyone but I can't ignore that kind of behaviour from men'.

48She said that she has intense feelings of anger with nowhere for it to go, and she said:

'There are days when I can't even just walk down the street due to triggers, it's so hard.  Anything can trigger my anxiety; a smell, a colour, an ad on TV'.

49She said she found the court hearings extremely difficult to deal with, stating:

'I don't suffer from depression but after the last court date I was so depressed I couldn't get out of bed'.

50She said that she has been diagnosed with Post-Traumatic Stress Disorder and, following the trauma of giving evidence in court, was forced to go back on medication, which she did not want to do.  She said:

'I can't see the beauty of the world.  I try not to be a negative person and I want to look at the world positively, but I see the world as being dirty and corrupt'.

51Finally Mackayla said:

'I didn't think to go to police for help at the time because I felt like back then the police wouldn't listen to children.  After I got out I just blocked it out and tried not to think about it.  For years afterwards I would see my scars and feel such a deep rage'.

52I might add that the injuries, both physical and emotional, described by Angela White and Mackayla Edgerton are entirely common insofar as this court is concerned amongst victims of sexual and physical abuse. I make a real point of saying this because very often people like Angela and Mackayla believe that there is something wrong with them.  I want to assure each of your victims that what they have written - horrifying though it is in terms of the pain and suffering it causes - is not abnormal for persons who have been subjected to the sort of abuse each of you were.  Any human being, as the court sees, who is subjected to this type of mistreatment develops the reactions that each of you have, so there is nothing specifically wrong with you; this is a reaction to what was done to you.

53I now turn to your personal circumstances, Mr White.

54You are now 43 years of age. You told psychologist Gina Cidoni, whose report dated 29 August 2021 was tendered on the plea, that you were raised by your maternal grandparents to the age of 14, although you lived next door to your mother. You seem to think that your two younger siblings were raised by your mother.  I had some difficulty with this, given the evidence given by Angela, that you all lived in your mother’s home.

55Your parents separated in 1987 and your father died in 2004. You were sent by your grandparents to a Christian camp several times a year, where you were sexually abused by Christian brothers there between the ages of seven and 16 years.

56You formed a relationship with a woman when you were 15 and that relationship lasted for five years. You have a son from that relationship but she left you and you have no relationship with that son. You then apparently returned to live at your mother's house.  You travelled when you were 23 and then became a carer for your father until his death in 2004.

57When you were 26 you lost rental accommodation, became homeless and lived on the streets for about 10 months, during which time you experienced sexual confusion, dressed as a woman and worked as a sex worker until you were 32.

58A second child, a daughter, was born of a relationship you had between 2004 and 2007. You no longer have any contact either with that former partner or your daughter.

59In 2017 you formed a relationship with a Canadian lady and she gave birth to twin daughters in October 2020. She returned to Canada and because of COVID has not been able to return here and you have not had contact with your daughters since.

60You have lived in the same rental premises in 16 years but that tenancy came to an end and you moved back to live with your mother at the start of the trial.

61You completed Year 11. You started a mechanical apprenticeship, which you did not finish, and then worked in wrecking yards in mechanical work, concreting and painting. You last worked 15 years ago.

62You were diagnosed with ADHD as a child.  You have undergone several physical assaults, one of them including an attack by a man who stomped on your head, and you developed a fluid cyst on your spinal cord and believed that you had suffered an acquired brain injury.  You were ultimately tested by Laura Scott, a neuropsychologist - I will refer to that report in a little more detail later on - but she found no evidence of an ABI.

63Gina Cidoni diagnosed you as suffering a major depressive disorder,
Post-Traumatic Stress Disorder with generalised anxiety, a borderline personality disorder with dependent, avoidant and melancholic traits and a substance abuse disorder.  You smoked cannabis for many years. You did use ice at one stage but that is no longer a drug of difficulty for you and you also have problems with alcohol.  She described you as a very reduced man.  She said in relation to a prison term that you could exhibit many different symptoms in response to this environment 'including intense emotional reactions, mood swings, intensely painful feelings of anxiety, distress and sadness and impulsive behaviours.  This will most likely worsen the symptoms and his maladjustments'.

64Her testing placed you as having what is called a 23 per cent probability of sexual recidivism within three years; that is under the Sex Offender Risk Appraisal Guide.  She stated that factors that contributed to your risk included your poor state of mental health, age of offending, victim factors and substance abuse.  I note that there has been no subsequent sexual offending since your offending against Mackayla Edgerton ceased.

65Ms Scott, whose report dated 22 October 2021 was tendered on the plea, diagnosed you as having an IQ of 78.  She confirmed that you continue to suffer from ADHD and complex mental illnesses including complex trauma from childhood abuse, PTSD, depression and a personality disorder, but said there was no evidence of an acquired brain injury.  She found that you have a number of difficulties in terms of your intellect; in particular with processing information, which she said was on the borderline range, although you have many other aspects of your intellectual functioning which fall within the average range, but said that you have a mild to moderate impairment in information processing speed, capacity to recall isolated pieces of verbal information and in your executive functioning.  She believed you would be a real risk of suicide or
self-harm if you were sentenced to a term of imprisonment.

66You of course have continued to deny the offending. You began denying it in the record of interview with police.  Both Angela and Mackayla were subjected to cross-examination. At committal and at trial it was put to each that they were fabricating their evidence of your physical and sexual assaults upon them.

67Your counsel submitted that I should deal with you by way of a community corrections order based on the lapse of time since this offending, the fact that you have a number of complex mental health issues, suffered sexual abuse yourself and are a person who would not deal with gaol well. You have never served a gaol sentence. There has been some other subsequent offending which I will not refer to, as it is minor and bears no relationship to the offending for which I must sentence you and I do not regard it as relevant in any way to the sentencing exercise before me.

68It was also submitted by your counsel that in relation to the offending against Angela you were a child at the time and, had a complaint been then made, would have been dealt with in the Children's Court where you would have been dealt with by being placed on a non-custodial order of some kind. I agree with this submission and in my view, serious though the offending against your sister was, because of your age at the time find I am unable to place you on a custodial sentence for this. However I wish to make it very clear that although at law I am not able, in my view, to gaol you for the offending against your sister, this does not mean that the offending was not extremely serious and very grave.  It resulted in her living a lonely, unsupported life largely until she discovered her extended family in Portugal. She was also abandoned by her mother, who clearly chose you over her daughter. She lost extended family, she has gone on to struggle alone and to suffer, unsurprisingly, very significant ongoing emotional and physical problems of a grave nature.

69The sentencing that I find appropriate for the offending in relation to her is a matter of law only and I want to make it very, very clear to Ms White that the court recognises, as I have said, how appalling the offending was against her, however because you were a child at the time the law says that I should sentence you in a way which would have reflected the sort of sentence that a Children's Court would have imposed had you been dealt with at the time of this offending.

70I also wish to note that I regard the actions of Ms White in coming forward as she did, giving evidence over a protracted period of time and reading out her victim impact statement, required a great deal of courage. I found both she and Ms Edgerton to be persuasive and truthful witnesses and I accept, Ms White’s life has been effectively blighted by the offending against her by you.

71It was also submitted by your counsel that I should deal with you in relation to the offending against Ms Edgerton by placement on a non-custodial disposition.  It was submitted that at the time you were only 20 years of age and that had you been sentenced at the time would have received either a suspended sentence, youth justice detention or a non-custodial disposition. I do not agree with this submission.

72I have had you assessed for placement on a community corrections order. You have been found unsuitable for that order largely on the basis of the opinion of the assessing officer that you would be incapable of undertaking an order.  That is not a matter however that should, in my view, play much part in the decision of whether or not I should place you on such an order.

73The prosecution submitted that I should deal with you by way of a term of imprisonment involving a maximum and minimum term. It is my view that the seriousness of your offending against Mackayla Edgerton would not have resulted in a non-custodial sentence had you been dealt with at the time. Your offending against her involved sustained and serious physical and sexual abuse of a child and over a period of 19 months. You effectively held her prisoner (although I note you are not charged with false imprisonment) and the whole of the relationship was in my view an entirely abusive one. It was an extremely disturbing relationship and, as I have said, involved continuous sexual and physical abuse.

74You have shown not one shred of remorse for your actions.  Each of the victims, as I have said - that is Angela and Mackayla - were clearly, as seen in their victim impact statements, traumatised by the trial and committal experience.  They had to relive the trauma of what you did to them, they had to endure extensive and long cross-examination, they were each accused of fabrication.  Each of your victims, as I have said, bears ongoing psychological scars from your actions. It would also seem to me that had Angela White reported this offending at the time, and had you then gone on to offend against Mackayla Edgerton, the fact of your prior history against Angela would have further blighted any chances you may have had of avoiding adult custody.

75I understand that you are, as Ms Cidoni said, 'a much reduced man'.  Nevertheless, in my view the dominating principles that I must take into account in sentencing you relate to general deterrence, condemnation of your actions, denunciation of them and just punishment.

76You may have gone on, in the last 20 years, to develop difficulties yourself.  You may not have further offended in that 20 years in the way you did against your sister and in the way you did against Mackayla Edgerton. Nevertheless, as I have said a number of times in these sentencing remarks, you have caused ongoing and likely permanent damage to each of them. The courts have spoken about this fact, that time may pass but the effect of this sort of offending goes on.  As eloquently stated by His Honour Mr Justice Vincent JA in the case of DPP v Toomey [2006] VSCA 90 at paragraph 22:

'It is well to bear in mind that the rehabilitation of the victim of sexual abuse may often be more difficult to achieve than that of the perpetrator.  Frequently the damage will be profound and a long time will pass before it can be addressed at all.

'In the meantime, childhood will be destroyed, self-esteem damaged, educational and career opportunities lost and the capacity to form and maintain relationships seriously impaired.  The notion to which I have adverted underpins, I believe, such concepts as restorative justice, just punishment, the vindication of rights and the attribution of responsibility based on moral culpability.  The vindication of the victim in cases of this kind in particular is profoundly important if the criminal justice system is to perform its role properly'.

77In other words, His Honour there is referring to the fact that - and in a specific way - the suffering endured by childhood victims of both physical and sexual abuse can go on to blight their whole lives and in those sorts of cases the issues, as His Honour stated, of restorative justice, just punishment, the vindication of rights and the attribution of responsibility based on moral culpability loom large in a judge's sentencing exercise.

78I also note that in the case of DPP v CP [2008] VSCA 215 Their Honours Kellam, Dodds-Streeton and Weinberg JA stated as follows:

'There was also a need for His Honour to have regard to what Vincent JA described in Director of Public Prosecutions v DJK as "social rehabilitation".  Vincent JA said that the process of social and personal recovery which we attempt to achieve in order to ameliorate the consequences of a crime can be impeded or facilitated by the response of the Courts.  Any failure on the part of the Courts to punish adequately those who are involved in the sexual abuse of children is likely to exacerbate the harm done by that conduct'.

79It is my view therefore that in relation to your offending against Mackayla Edgerton you should be sentenced to a term of imprisonment which will contain a maximum and minimum term.  Again, I am very anxious that
Ms White, who I understand is listening to these sentencing remarks, understands that the fact that I am going to deal with the offending against her by way of a non-custodial disposition has nothing to do with the seriousness of the crime but only the age of her brother at the time that this offending occurred, I will begin by sentencing in relation to the offending involving Ms Edgerton.

80On Charge 7 you are sentenced to 10 months' imprisonment.

81On Charge 8 you are sentenced to 10 months' imprisonment.

82On Charge 9 you are sentenced to five months' imprisonment.

83On Charge 10, eight months' imprisonment.

84On Charge 11, six months' imprisonment.

85On Charge 12, eight months' imprisonment.

86On Charge 14, eight months' imprisonment.

87On Charge 15, 10 months' imprisonment.

88On Charge 16, 10 months' imprisonment.

89The base sentence will be the sentence imposed on Charge 7.  That is a term of 10 months.

90I order that three months of each of the sentences imposed on Charges 8, 14, 15 and 16 be served cumulatively to the sentence imposed on Charge 7, and to each other, and that one month of each of the sentences imposed on Charges 9, 10, 11 and 12 be served cumulatively on the sentence imposed on Charge 7, and to each other.

91That should give a total effective sentence of 26 months; that is two years and two months' imprisonment. I order that you serve 17 months before becoming eligible for parole.

92I have very much moderated the sentence imposed upon you, Mr White, and that is because of the mitigatory factors raised by your counsel; that is the lapse of time and your own personal difficulties.

93I am satisfied that you will find service of a term of imprisonment more difficult than would the ordinary prisoner and that a term of imprisonment may exacerbate your current mental health difficulties, enlivening the relevant limbs of Verdins.

94I note that you are currently in custody on remand in relation to charges of breaching an intervention order that your mother had taken out against you and other alleged offences involving threat to kill, recklessly causing injury and so forth, which are to be contested.

95You must be placed on the Sex Offenders Register for life. 

96MR ALBERT:  To note on the record the serious sexual offender provisions.

97HER HONOUR: Insofar as the offending from Charge 7 and 8 onwards are concerned I declare you are sentenced as a serious sexual offender.

98In relation to each of Charges 1, 2, 3, 5 and 6; on each of those you are to be placed on an undertaking to be of good behaviour for a period of two years and there will be a conviction in relation to each of them.

99This is the only way I could see that I could impose an appropriate sentence of imprisonment in relation to the Mackayla Edgerton offending and abide by the legal dictates of the offending relating to Angela White. All right?

100There's no PSD, as I understand it.  Is that right?

101MR ALBERT: That's right, Your Honour.  I mean, he's on remand for other matters.

102HER HONOUR:  Yes, but that's got nothing to do with this.

103MR ALBERT:  No, that's correct.

104HER HONOUR:  All right, thank you. Yes, I thank counsel for their assistance.  I thank Ms Edgerton and Ms White for coming to court and reading their victim impact statements. We will now adjourn sine die, as I am starting a circuit in Shepparton next Tuesday. 

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