Director of Public Prosecutions v Whitelaw (a pseudonym)
[2018] VCC 187
•2 March 2018
| IN THE COUNTY COURT OF VICTORIA AT WARRNAMBOOL CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHARLES WHITELAW (A pseudonym) |
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JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 1 March 2018 | |
DATE OF SENTENCE: | 2 March 2018 | |
CASE MAY BE CITED AS: | DPP v Whitelaw (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 187 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Cordy | Office of Public Prosecutions |
| For the Accused | Ms S. Parsons | Doogue + George |
HER HONOUR:
1 Between early 1971 and early 1972 when you, Charles Whitelaw[1] were aged 15 and 16, you engaged in a course of conduct, sexually abusing your sister Amber,[2] 15 months your junior. She was therefore 14 at the time the sexual abuse commenced, and 15 when you stopped abusing her.
[1] Charles Whitelaw is a pseudonym.
[2] Amber is a pseudonym.
2 In late 1975, when you were 20, you began sexually abusing your youngest sister, Brooke.[3] She was 11 and a half years younger than you and was only eight when the sexual abuse of her began. With Brooke, it continued for more than two years, finishing when you were 22 and she, 11.
[3] Brooke is a pseudonym.
3 Although Amber and Brooke both disclosed the sexual abuse to friends and family members at various times - for Amber, beginning in 1975, and Brooke, from 1979 - it was not until 2016, after the death of your and their mother, that they made complaint to the police. As a result of that, a police investigation began. You made some partial and qualified admissions in respect of sexual misconduct in respect of both sisters in a telephone call initiated by Amber as part of the investigation in August 2016.
4 In particular, having initially told Amber you did not remember doing anything to her, you then said you could recall what you described as experimenting a few times in the bathroom, adding that you thought it was a consensual agreement. So far as Brooke was concerned you told Amber you knew you did offend with her occasionally, starting when she was eight years old, but said you could not recall the extent of it, and did not recall any of the incidents with her in full detail.
5 You presented for interview on 15 October 2016. When interviewed, you told police you had a vague recollection of something occurring between you and Amber when you were about 15. You denied any acts of sexual penetration as alleged by her and described what had occurred as a single instance of mutual sexual experimentation. So far as Brooke was concerned, you told police you were “worried” something had happened between you. You said you had no immediate recollection of what had happened, but you recalled Brooke’s then husband had told you “something” had happened between you and Brooke, and he wanted to kill you for it.
6 You were charged with offences involving acts of sexual penetration, other sexual touching, and gross indecency involving both sisters. Although you offered to plead guilty to charges involving Brooke at an early stage, and as a result she was never required to give evidence at committal, you contested the charges concerning Amber. She was cross-examined at committal, and the charges concerning her did not resolve by the entering of guilty pleas to charges including acknowledgement of acts of sexual penetration until during the course of pre-trial argument and negotiations after date the trial was listed to commence, that is, after 26 February this year.
7
In your defence response, you indicated that as a result of the prosecution indicating its intention to rely on evidence of your conduct concerning Brooke as tendency evidence in respect of the contested charges involving Amber, you intended to put the Crown to proof in relation to the charges concerning Brooke. When the matter came on for trial, you indicated through your counsel,
Ms Parsons, that you accepted the evidence of your conduct in respect of Brooke was capable of use for tendency purposes in respect of the charges concerning Amber, but sought to challenge its admissibility or to argue for its exclusion on the basis of the possibility of collusion or contamination. Therefore you indicated that Brooke would be required to attend for cross-examination on a voir dire before empanelment in respect of collusion, and if unsuccessful in having the evidence of your conduct with her excluded, that she would be required to give evidence at the trial concerning Amber. That is, you would, as your defence response had indicated, “put the Crown to proof” in respect of the allegations concerning Brooke. Or put otherwise, at trial you would contest the truthfulness and reliability of Brooke's evidence, notwithstanding your instructions the conduct with Brooke was admitted, if it was to be admitted as tendency evidence in respect of the charges concerning Amber.
8 In other words your offer to plead guilty to charges concerning Brooke was conditional upon her evidence (acknowledged to satisfy the threshold test for admissibility as tendency evidence) not being relied on for that purpose in respect of proof of the charges concerning Amber.
9 So at the start of the trial, the charges concerning Brooke as well as those concerning Amber were properly described as contested charges, requiring a jury determination.
10 The prosecution ultimately withdrew its tendency notice, thus removing the impediment to your entering pleas of guilty to the charges concerning Brooke, and sparing her the need or ordeal of being twice cross-examined in the sittings. The prosecution was prepared to forego the considerable forensic advantage flowing from reliance on tendency evidence in respect of the conduct to Brooke in relation to the charges concerning Amber. That is, in the event the possibility of collusion was dispelled by the evidence elicited on the voir dire or was left for the jury to determine. As a result, your conditional offer to plead guilty to the charges concerning Brooke became unconditional, and on the second day of pre-trial argument you were arraigned and pleaded guilty to charges concerning Brooke. Discussions continued between the prosecution and defence, and the following day you entered pleas of guilty in respect of charges concerning Amber.
11 This long narrative, I think, is necessary in order to explain why I consider that your guilty pleas, although late, and occurring in those circumstances, nonetheless carry considerable weight. Ms Parsons expressly accepted the truthfulness of Amber and Brooke’s accounts as contained in the prosecution openings on plea in respect of each of them. Each sister, therefore has been vindicated as a truthful and reliable witness in respect of what they allege you did to them. Your guilty pleas expressly acknowledged that in their presence. Having regard to the circumstances of the offending, and the rifts in the family following the disclosure of the sexual abuse of a number of your sisters by you or your father, that acceptance of their truthfulness, and your guilty pleas carries, in my view, considerable weight.
12 Your guilty pleas also of course entitle you to credit for their utilitarian value, and for their role in advancing the interests of justice. For the reasons I will now outline, I do not consider the guilty pleas are, in themselves, or coupled with other evidence, indicative of remorse. That is, remorse in the sense used in Barbaro and Zirilli.[4]
[4]Barbaro; Zirilli [2012] VSCA 288.
13 Whilst in the conversation with Amber, to which I have already referred, after she had made her complaint to the police you did at one stage apologise to her, it was in my view at best a perfunctory apology. In my view its sincerity is far outweighed by your repeated professions, throughout the phone conversation, of an inability to remember what you had done and your assertions you believed whatever happened was consensual. Your assertion that you had not had a chance to apologise to Brooke, coupled as it was with your repeated reference both in respect of the allegations concerning Amber and the allegations concerning Brooke, that you were petrified of the results of what could happen for you rob the apology to Amber and expressions of regret, in respect of not saying anything to apologise to Brooke, in my view, of any true meaning.
14 However you are not to be punished for that. As I have said explicitly, your pleas of guilty, although late, are of considerable weight and operate to reduce considerably - as the s.6AAA declaration I will make at the conclusion of these reasons makes clear - the sentence I would otherwise have imposed. Absence of remorse is not an aggravating factor. It is relevant only to my assessment of the weight to be given to denunciation and deterrence, your prospects for rehabilitation and protection of the community. In the circumstances of this case that means simply that I do not give less weight to the sentencing needs of denunciation and deterrence because there is no evidence of remorse. Nor do I give any lesser weight to your prospects for rehabilitation as a result of an absence of evidence of remorse. And I do not consider it operates adversely to your interests so far as I need to consider the weight to be given to protection of the community
15
That long introduction then leads me to the circumstances of the offending.
You have pleaded guilty to once charge of incest, representative of two instances, one of indecent assault and one of gross indecency concerning Amber, and three of indecent assault and two of gross indecency concerning Brooke. There are other acts of sexual misconduct detailed in their admitted accounts which are not separately charged, but which I take into account as relevant to an assessment of the overall context of the offending.
16 So far as Amber is concerned the details are these. On an occasion between 1 January and 15 November 1971 Amber was in the laundry when you walked in, pushed her up against the wall, attempted to kiss her on the lips, leading to her breaking away from you and running into the house, or further into the house. You caught her outside one of the other children's bedrooms and said to her, as you pushed her up against the wall, "Shut up or I'll tell on you". You pulled her pants down, opened your fly, exposed your erect penis, pushed your body hard up against her, thrust your penis between her legs pushing so hard that you eventually penetrated her vagina. You thrust your penis in and out of her vagina for a period of time, covering her mouth with your own arm so she could not call out. You stopped only when you heard someone coming through the backdoor of the house.
17 The other occasion of which this charge is representative occurred at your grandparent's home between November and the end of December 1971. There was a family gathering for Christmas and Amber had just turned 15. She went into the house, leaving the rest of the family outside, to go to the toilet. You followed her into the toilet cubicle, surprising her, closed the door, pushed her up against the back of the toilet door, again covering her mouth so she could not call out, again pulling her pants down and thrusting your penis against her vagina. Eventually you pushed it into her vagina and continued to violently thrust it in her vagina until, again, you stopped when you heard somebody nearby.
18 On each of those occasions you told her that you would "tell on her". Thus threatening her if she told anybody that you would make it out to be her fault, not yours. That gives rise to Charge 1 of incest.
19 The charge of indecent assault occurred in the bathroom of the family home around about the commencement of the 1971 school year. You cornered Amber while she was in the bathroom cleaning a pair of shoes. You grabbed her from behind, grabbing her breasts and held her tight for a period before you turned her around, undid her dress and placed your hands inside her dress and roughly fondled her breasts. You then put your hand up under her dress, pulled her underpants down and rubbed your exposed penis against the outside of her vagina and between her legs. On this occasion penetration did not occur. She was pushed up against a wall or cabinet while this was happening and again you threatened her saying "Don't" and "I'll tell on you" as you left the bathroom.
20 Charge 3 of gross indecency occurred in late 1971 or early 1972, again at the family home. You and Amber were in the garage. You forced Amber against her express refusal to hold your erect penis. You made her lie down on a rug on the floor of the garage and then got to your knees and attempted to urinate on her face. She managed to escape and run away before you were able to do so.
21 The charges concerning Brooke are these. In late 1975 or early 1976 when Brooke was eight, she being the youngest in the family and you being the oldest at that stage still living at home, you followed her into the outside toilet of the family home. Again as you had done with Amber, you followed her to the cubicle and closed the door behind the two of you. Brooke was sitting on the toilet at the time urinating and you told her to urinate into your mouth. She, being only eight and not understanding what was happening or why, did as directed by you, her considerably older brother. She was left confused by what had happened.
22 Charge 2, the first of indecent assault occurred over the same period. She was in your bedroom looking for loose change when you came into the room. She was aware that you were looking outside to make sure that nobody could see what was happening or would disturb you. You told her you would give her some money, pulled down your pants, exposed your penis and asked her to suck it. You grabbed her head, positioned her head over your penis, and told her how to do it. You held her head and pushed your penis in and out of her mouth until you achieved an erection. She did as directed and you stopped only when you realised that your mother had stopped mowing the lawn immediately outside and appeared to be on her way back into the house. Brooke remembers feeling afraid that she would be caught.
23 Charge 3 of indecent assault is one that actually involves an act of sexual penetration. Again it occurred over the Christmas holidays 1975 /1976, that is between 1 December 1975 and mid-February 1976. Brooke was asleep in bed and awoke to find you kneeling beside her bed. You put your hand up between the sheets, touched her vagina and then thrust your fingers into her vagina. It hurt and she gasped and you said "Don't worry, it's just because it's tight. It will get bigger". You stopped when you wanted to and left the bedroom.
24 Charge 4 is another charge of indecent assault. This one occurred somewhere between 1976 and 1978. It started in the laundry. You walked in, asked Brooke her whether she had been to the toilet and told her to go into the garage because you wanted her to wee in your mouth as she had previously done. She followed you into the garage as directed. It must be remembered she was somewhere between nine and 11 and you were 21 or 22. You made her lie on a hessian bag covering the floor. You then lifted up her skirt and pulled her knickers down and commenced to lick her on her vagina. She recalls staring at a hole in the brickwork while you were doing that, waiting for it to finish. After a short period of time you asked her if she felt like weeing yet and Brooke recalls thinking that if she could make herself urinate, that this would end it. So she started to urinate. You knelt down between her legs and started to masturbate your exposed penis. When she saw that she said "I don't want to watch this" and got up off the ground and ran out of the garage. It is that that gives rise to the gross indecency, the final charge on the indictment.
25 The effect on each of your victims, Amber and Brooke, has been profound. The victim impact statements, which they read in your presence yesterday reveal their pain, and the significant and long-term harm that your conduct has caused them. That harm and pain has affected every aspect of the lives, their happiness and sense of self-worth, their childhood memories, their perception of their inability to fulfil their potential in personal relationships, as mothers, academically, in employment, and financially. They spoke too, of the impact as a result of the impact on them, on their partners, their children, and their relationships with their and your parents, particularly their mother, and their and your other siblings.
26 It is 47 years since the offending concerning Amber commenced, and 43 years since the offending concerning Brooke commenced. It is 40 years since it finished. The characterisation of these offences, and the penalties for them were very different then from what they are now. The incest charge concerning Amber is now punishable by imprisonment for up to 25 years. At the time the maximum sentence was seven years. The other charges concerning Amber would now be characterised as sexual assault or activity in the presence of a child under 16, punishable by imprisonment for up to ten years. At the time there were characterised as indecent assault of a female and gross indecency with a girl under 16 respectively and punishable by maxima of three years and two years respectively.
27 In relation to Brooke, Charges 1, 4 and 5 would all today be charged as sexual assault of or activity in the presence of a child under 16, not indecent assault or gross indecency, and Charges 2 and 3, involving acts now characterised as acts of sexual penetration, would have been charged as incest not as indecent assault.
28 I must sentence you by reference to the charges you face as they were then characterised, and by the maximum penalties then applicable. However I must take into account the greater understanding now of the gravity of such offending and of the knowledge of the risk, which in this case materialised for both of your victims, of profound and long-term harm flowing as a result.
29 I must also take into account the fact that you were a child, that is, a person under 18 at the time of the offending in relation to your sister Amber. Had the offending concerning her come to light at the time (and she bears no blame or responsibility for the fact she felt, understandably, that she was powerless, and would not be listened to, believed or respected), you would have been dealt with in the Children’s Court, and subjected to the sentencing philosophy of that court, which is to give paramountcy to the rehabilitation of the child offender over other sentencing considerations.
30 So far as your sister Brooke is concerned I must take into account the fact that you were properly to be characterised, at the time of that offending, as a young offender, and that as a general proposition young adults should also have their prospects of rehabilitation given greater weight than the other sentencing factors applicable to adult offenders, and which often carry greater weight, namely denunciation, deterrence and just punishment. Again, Brooke bears no blame or responsibility for the fact that your wrongdoing to her was not exposed at the time. Her very youth and innocence, her limited understanding of the nature of what was happening or her ability to say no, as well as her powerlessness left her unprotected and unsupported by those adults who should have had her welfare and interests at heart.
31 Your moral culpability must be assessed by reference to your age at the time of the offending, and your circumstances as they were then.
32 Although you were young, the evidence clearly indicates you knew what you were doing in respect of each of your sisters was wrong. So far as Amber is concerned, you used force and violence against an obviously frightened and resistant younger sister. On each occasion, you threatened her with “telling on her”. That is, although only 15 months older than her, by that you showed you understood the nature of the relationship between the two of you and with your parents and that she would fear that she would be held to be at fault and get into trouble were she to tell anyone or if you gave your version of events to anyone, or were anybody to see what had happened.
33
As the evidence before me makes clear, you were not the only person in the family subjecting Amber to serious sexual abuse at the time. Her father, your father, is currently serving a sentence for his sexual abuse of her, and another sister. It is unclear to me whether you knew that at the time you were offending against Amber or only found out later about your father's abuse of Amber.
Your answers to Amber in the conversation she had with you in August 2016 during the police investigation are contradictory. On the one hand you sought to sheet home responsibility for your conduct to what you described as the example you got from your father. On the other hand when Amber pressed you on whether you knew at the time what her father was doing, you denied knowledge of it.
34 If indeed you did know at the time that you were sexually abusing your sister Amber that your father was also sexually abusing her, that is no mitigator. Having regard to the evidence I have detailed which indicates you knew clearly that what you were doing was wrong and that you used threats and violence to secure her silence, it cannot be suggested that you thought at the time that this was normal or acceptable conduct. If anything, deciding to sexually abuse a sibling who you knew was already being abused by your father, with apparent impunity, would aggravate the gravity of your offending. If on the other hand you did not know what her father was doing to her, then you cannot rely on a retrospective discovery of his wrongdoing as a bad example. The evidence does not permit me to make a finding one way or the other as to whether you did know. Therefore there is no aggravating feature that I take into account so far as you are concerned in relation to that. There is, as I think I have made clear, nothing that I consider to be mitigating from either of the versions that you have given.
35 So far as your younger sister Brooke was concerned, the 11 and a half year age gap between the two of you, your ages at the time, you, a young adult, long out of school and long in employment, she an eight-year-old still at primary school, you, the second oldest in the family, and the oldest child at home, she the baby of the family make this a much more profound breach of trust because of your age, and stage of life and the resultant power imbalance between the two of you.
36 Again it is clear that you knew that what you were doing was wrong and in this case, you used your authority as an older brother and her youth, innocence and ignorance to compel her to do what you directed her to do.
37 It is also of significance in my view that by the time you came to offend against Brooke, you had been charged with and had been before a court on a charge of wilful and obscene exposure. I was told that involved exposing yourself to a young female, unknown to you in a public place. You had been dealt with on that occasion by being placed on 12 month bond to be of good behaviour.
38 It is also of significance that by the time of the last offending against Brooke, you were engaged to be married. A testimonial from that woman (who later became your wife and then your ex-wife) was provided on your behalf on the plea. She is your former wife, Audrey.[5] She refers to the fact that she was 17 when you first started dating in 1977, that she had been brought up in a strict Catholic home with the belief and expectation that she should remain pure until marriage, and that for the three and a half years you dated, as I understand it, until you married, that you respected her, her opinions and her wishes at all times, and that not once did you pressure her into doing anything to her against her will. She said she could never imagine you forcing anyone to go against their wishes and expressed her shock by what she describes as the “accusations” and “charges” that you now face.
[5] Audrey is a pseudonym.
39 How that expression of shock and description of the charges as accusations sits with your acknowledgement by your pleas of guilty and the express acknowledgement by your counsel of the acceptance of the prosecution summaries is not clear to me. At best it means that you were not prepared to afford your younger sister the same respect for her autonomy as you were to your then girlfriend. That you were not prepared to subject your girlfriend to the same sexual pressure and coercion, and sexual assault, as you subjected your sisters to.
40
I am satisfied therefore that your moral culpability in respect of the offending in respect of both sisters is for those different reasons high. I am satisfied that the charges of indecent assault which involved sexual penetration, should be characterised as offences the gravity of which sits at the higher end of the spectrum for offences of indecent assault as they then were. I am satisfied that the charge of incest is, in the circumstances, a serious example of its type.
Not only is it representative but the surrounding circumstances make it clear that the conduct itself and the manner in which she was treated was degrading, and the acts were accompanied by violence and coercion.
41 So far as the gross indecency charges are concerned, again I consider them to be degrading in the circumstances to each of your victims. So far as Brooke was concerned you used your adulthood and authority, contrasted with her youth and innocence, and with Amber violence, threats and coercion, again placing the offending at the higher end of the scale.
42 It follows then that subject considerations personal to you, and having regard to the constraints brought about by reason of the different legislative and sentencing regime that existed at the time of the offending, denunciation deterrence and just punishment are, as your counsel frankly acknowledged on the plea, the paramount sentencing considerations.
43 What then other considerations personal to you? First as I have already indicated, your pleas of guilty weigh heavily in mitigating the sentence otherwise to be imposed. Although they were entered at the last moment, the vindication of the victims and the sparing them the ordeal at trial of having to give their account and the indignity of being challenged on their truthfulness is, as I have said in my view, a very significant consideration.
44 It is 40 years since the last of the offending and you have not been charged with or convicted of any like offending in that time. You have twice more been charged with offences of obscene exposure, once in 1997 and once in 2011. That means your history indecent exposure offending extends over a period of 38 years. However there have been no contact sexual offending for 40 years.
45 Until you suffered the second of two strokes that you have suffered in 2011, and to which I will refer in a little more detail soon, you had had a very good and steady work history throughout your life. You left school at 15 and it would appear have been in almost continuous - if not continuous - employment since then. For approximately 30 years you have worked for the one employer. That speaks well of your preparedness to work, your capability and your reliability as well as your commitment as a citizen to support yourself, support your family and to provide for yourself and for them as best you could. Even since the stroke you have continued to seek out and engage in such work as you are capable of performing.
46 You have had two marriages of reasonable duration. From the first marriage your only child, a son now in his 30s, was born. Although the relationship with his mother, your first wife Audrey to whom I have already referred, came to an end when he was young you have been a constant presence in his life, and obviously played a considerable and positive role in his upbringing. You maintain a good relationship and have done so, it would appear, since separation with his mother, your former wife. You are deeply involved in his sporting activities as a child and in sharing care with him although Audrey was the primary carer. That is not to devalue the role that you played and the constancy and reliability of that role. You supported junior sport, whilst maintaining your own involvement in sports such as cycling and football well into your mature adult years.
47 Speedway racing was a passion that you shared with your father, continued on you own independently and then with your son. He has achieved considerable success as a professional driver, winning a number of Australian championships. Without detracting from the credit he deserves for his own driving and commitment, it is abundantly clear from the testimonials that were provided, that your support of him from his childhood through to now in training him and assisting him and preparing his cars and being an integral part of his crew, has been invaluable if not irreplaceable. Not only his testimonial but the testimonial of others show that that is acknowledged and appreciated.
48 Your former wife, Audrey, and a number of friends, people you have known and been friendly with for many years, provided testimonials. They spoke in glowing terms of the good role model you were and continue to be as a father, of the good and loving relationship you maintain with your son and of the amount of time and money that you have devoted to this shared interest and to developing and nurturing your son's professional driving career.
49 You are held in high regard it would appear by many people involved in Speedway racing and in your broader community. It is clear that you have been a contributor to your family into the community more broadly. All these things count in your favour.
50 You suffer a number of health problems. In 2009 suffered the first of two strokes. That appeared, without wanting to devalue it, to have been a relatively minor one from which you made a very good recovery. But in 2011 you suffered a second stroke. The medical reports provided to me, whilst in doctor's terms, describe you as having made a considerable improvement from the original symptoms, you have significant continuing deficits. Although they are described as manageable they are nonetheless deficits. According to the neuropsychological assessment conducted five months after the stroke, you suffer, and would appear to continue to suffer, problems with your short-term memory. The neuropsychological report noted that your previously learned knowledge was not affected, that it was short-term memory loss that appeared to be the greatest deficit. The neuropsychologist reported, following testing, that most of your other abilities remained intact and that therefore you were able to compensate for your short-term memory loss without great difficulty. Five months after the stroke in late 2011 it was her opinion that you would be able to return to work on a graduated basis with appropriate supports. She noted that you were exhibiting signs of psychological distress. You did return to work but you are unable to work fulltime as a result of the physical exhaustion and physical incapacity following form the stroke.
51 A more recent psychological report has been provided which indicates that you did indeed seek psychological support for the signs of psychological distress that you were manifesting in 2011 following the stroke, for the difficulties you were then having coming to terms with the deficits as a result of that.
52 A psychological report was provided on your behalf from Dr Di Battista. It was, in some ways helpful, but it was not particularly helpful as a forensic report for court purposes. It was prepared in 2016. It did not conform with the Practice Note in relation to psychological reports for sentencing hearings. In particular it made no reference to any offending behaviour including the offending behaviour before me. Surprisingly there was no reference to the last obscene exposure charge despite the fact that the criminal history that was provided to me showed that it was a condition of the adjournment by the court on that occasion that you continue to engage in psychological counselling. It is clear from Dr Di Battista's report that he was the one who was providing and continued to provide counselling to you at that time.
53
In the circumstances I treat the report from Dr Di Battista, as a report from a treating psychologist not as an expert forensic report. It makes no reference to past or present offending. It cannot therefore bear on any assessment of risk. Indeed Dr Di Battista did not purport to express an opinion as to assessment of risk, that is unsurprising given he did not refer to the offending at all. Nor is it particularly relevant to an assessment of your prospects for rehabilitation or the need for specific deterrence because it did not address the offending. In so far as it appears to base Dr Di Battista's assessment back in 2016 of major depressive disorder, recurrent and comorbid adjustment disorder with anxiety features on the administration of the Beck depression inventory and anxiety symptoms checklist, I note that such checklists are not diagnostic tools capable of supporting a diagnosis of depression or anxiety or associated conditions.
I accept that at the time of re-presenting for psychological evaluation on 10 August 2016 that as a result of the results of the administration of the Beck depression inventory and the anxiety symptoms checklist, you were exhibiting symptoms of depression and anxiety and had been doing so over the previous two weeks.
54
In 2016 Dr Di Battista considered that your then mental state, which as far as
I can glean from the report, was based on the results of the Beck depression inventory and anxiety symptoms checklist, was a relapse of prior mental health problems experienced in 2011 and 2012. Those mental health problems that you experienced in 2011 to 2012 appear from what he says and from what
I was told on the plea, to be related to the aftermath of your second stroke.
Dr Di Battista also noted that you had chronic physical health problems which acted as a maintaining factor for your psychological symptomology, as did the difficulties you were then experiencing adjusting to the loss of the regular companionship of your son who by then had moved to Queensland.
55 Apart from being satisfied that you have in the past been diagnosed with and have suffered from depression and an adjustment disorder apparently causally connected to deficits suffered as a result of a second stroke, and may therefore be subject to further recurrent episodes of poor mental health, there is no evidence before me as to whether you are currently suffering depression or anxiety or an adjustment disorder. Nothing therefore to enliven any of the limbs of Verdins and Ms Parsons did not, of course, seek to invoke them.
56 You report a range of other physical medical problems: hypertension, high cholesterol, and osteoarthritis in various places. It is of such severity in your right knee that in 2015 when you consulted an orthopaedic surgeon and tests were conducted. He indicated that the only surgery which could treat the osteoarthritic symptoms would be a total knee replacement. It appears that you have not gone down that path, or not to date, and I note that you have been walking with the aid of a stick at court, which indicates a continuing problem with your knee. I was told by Ms Parsons that you have also recently been diagnosed as suffering from gallbladder problems of such a degree as to warrant surgery, had been on a waitlist for gallbladder surgery and in fact had been informed just before this trial was due to commence that you could have been operated on on Monday, the day that the trial was listed to commence. So that has had to be deferred.
57 All these matters I take into account in you favour, as positive factors in your favour or as factors that because of physical or mental ill health, operate to reduce the sentence otherwise appropriate.
58 Whilst the absence of like offending for 40 years is clearly a significant factor in terms of assessing what weight needs to be given to specific deterrence, and to your prospects for rehabilitation, in my view your good work history, your relationship history, and the positive attestations to your good character from your former wife, your son and the friends who have provided them are the more significant factors weighing in your favour in that regard.
59 Ms Parsons submitted that in all the circumstances although conceding that a term of imprisonment must be imposed for the offending, a fully suspended sentence was within range. Unpicked that means first that a total effective sentence of no greater than three years was within range, and second, that it was desirable in all the circumstances of the case to fully suspend it.
60 In my view no sentence other than one involving a component of imprisonment immediately served is sufficient to mark the gravity of the offending as I have characterised it and to serve the purposes of denunciation, general deterrence and just punishment in the circumstances as I have set them out.
61 I am satisfied however that it is open to impose a total effective sentence which will permit me to partially suspend that sentence. I have come to that view with some reservations. When I first started considering the matter having regard to the admitted facts and in the context that I have set out in such detail, it seemed to me that that was too light. But on reflection I have considered that it is within the sentencing range although I would not necessarily have confined myself to a total effective sentence as low as three years. But the time since the offending occurred, your youth at the time and the different person you are now, compared to the person you were at the time of the offending, have all led me to the view that although it would have been open to me to impose individual sentences and a total effective sentence greater than three years it is not a miscarriage of my sentencing discretion to come up with figures which would result in a total effective sentence of not greater than three years. I am, having come to that view, also of the view that in the circumstances it is desirable and appropriate to partially suspend the sentence rather than fix a head sentence and a non-parole period.
62 Having come to that decision I therefore record that you fall to be sentenced as a serious sexual offender in respect of Charge 3 on the indictment concerning Amber and all charges on the indictment concerning Brooke. I do not consider that it is necessary to impose a disproportionate sentence in order to give proper weight to protection of the community, which is as a result of the serious sexual offender declaration, to be given paramountcy in sentencing. I declare that you are sentenced as a serious sexual offender in respect of those charges, and direct that be noted on the record of the court.
63 I have already made reference to the fact that by reason of the sentences that I am about to impose and your conviction for these charges the Sex Offenders Registration Act 2004 (Vic) provides in mandatory terms (I have no discretion in respect of it) that you are liable to registration under that Act for life. That is so by reason of the charges concerning Brooke initially and then by reference back to the charges concerning Amber. Had this matter been dealt with solely in relation to the charges concerning Amber, because you were under 18 at the time, those charges would not automatically have been counted and would not have required a Sex Offenders Registration Act declaration. But once the convictions in respect of the charges concerning Brooke come into effect then the Act requires (again mandatorily) that I count back and take into account the charges concerning Amber. So the sex offender reporting relates to all charges to which you have pleaded guilty, not just those concerning Brooke. Could you now please stand.
64 Charles Whitelaw, on all charges on both indictments to which you have pleaded guilty you are convicted. On the indictment concerning your sister, Amber Brett, on Charge 1 of incest you are sentenced to be imprisoned for a period of 12 months and I make that the base sentence. On Charge 2 of indecent assault you are sentenced to be imprisoned for a period of six months. On Charge 3 of gross indecency you are sentenced to be imprisoned for a period of four months.
65 On the indictment concerning your sister, Brooke Whitelaw, on Charge 1 of gross indecency you are sentenced to be imprisoned for a period of six months. On Charge 2 of indecent assault you are sentenced to be imprisonment for a period of 12 months. On Charge 3 of indecent assault you are sentenced to be imprisoned for a period of 12 months. On Charge 4 of indecent assault you are sentenced to be imprisoned for a period of nine months. On Charge 5 of gross indecency you are sentenced to be imprisoned for a period of six months.
66 I direct that three months of the sentence on Charge 2, and two months of the sentence on Charge 3, in relation to Amber Brett, and two months of the sentence on Charge 1 in relation to Brooke Whitelaw, six months on Charge 2 in relation to Brooke Whitelaw, six months of Charge 3 in relation to Brooke Whitelaw, three months on Charge 4 in relation to Brooke Whitelaw and two months on Charge 5 in relation to Brooke Whitelaw, be served cumulatively upon each other and upon the sentence of Charge 1 relating to Amber Brett, the 12 month base sentence. That makes a total effective sentence of three years' imprisonment between both indictments.
67 I suspend two years of that sentence for a period of two years. That means you must serve a period of 12 months and the balance of two years is to be suspended.
68 Pursuant to s.6AAA of the Sentencing Act 1991 (Vic) I declare that but for your pleas of guilty I would have sentenced you on both indictments to a total effective sentence of six years' imprisonment and I would have fixed the period of four years as the time that you were to serve before being eligible for parole.
69 I have made the serious sex offender declaration and the SORA orders.
70 Pursuant to s.464ZF I am satisfied that the seriousness of the offences and the circumstances justify the making of the order. I direct therefore that a forensic sample be taken from you. I direct that that be taken by way of buccal swab, that is the wiping of a swab on the inside of your mouth until a sufficient sample has been obtained. I must advise you that in the event that you do not cooperate with the police in the provision of that sample, then they are permitted to use reasonable force and that means it is likely that they will use the more invasive means of obtaining a sample, namely the taking of a blood sample. Do you understand that?
71 OFFENDER: Yes.
72 HER HONOUR: Thank you. Do the orders that I have pronounced reflect what I said I intended to do? Is the arithmetic correct and are there any further orders required to be made?
73 MR CORDY: The arithmetic is correct and it appears to reflect Your Honour's intention. I'll hand up draft 464 orders for Your Honour's signature.
74 HER HONOUR: Thank you.
75 MR CORDY: Your very efficient Associate's indicating that you've already got them, Your Honour, by the sound of it.
76 HER HONOUR: I have but I printed them - they're printed out double sided so I've got both forms, so I do need that.
77 MR CORDY: Yes all right. Thank you.
78 HER HONOUR: I'll sign those in Chambers and return them to you.
79 MR CORDY: Thank you, Your Honour, other than that nothing further is required, Your Honour.
80 MS PARSONS: Nothing further.
81 HER HONOUR: All right again thank you for your assistance, thank you for your attendance. Could you remove Mr Whitelaw please.
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