Director of Public Prosecutions v Williams (a pseudonym)

[2020] VCC 2065

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

ROGER WILLIAMS (A PSEUDONYM)

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JUDGE:	HER HONOUR JUDGE CARLIN
WHERE HELD:	Melbourne
DATE OF HEARING:	19 November 2020
DATE OF SENTENCE:	17 December 2020
CASE MAY BE CITED AS:	DPP v Williams (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2020] VCC 2065

REASONS FOR SENTENCE
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Subject: Criminal Law

Catchwords: Plea of Guilty; Persistent sexual abuse of three children under 16 being offender’s biological granddaughters aged between five and eight; standard sentence offence; no prior criminal history; egregious breach of trust; low to moderate risk of re-offending.
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic); Sex Offenders Registration Act 2004 (Vic).

Cases Cited: DPP v Toomey [2006] VSCA 90; DPP v DDJ [2009] VSCA 115; Clarkson v The Queen (2011) 32 VR 361; Barbaro & Zirilli v The Queen [2012] 226 A Crim R 354; Adamson v R [2015] VSCA 194; DPP v Bales [2015] VSCA 261; Brown v The Queen [2019] VSCA 216; Mush v The Queen [2019] VSCA 307; DPP v Polat [2020] VSCA 174; Lockyer (a pseudonym) v The Queen [2020] VSCA 321; DPP v Robards [2020] VCC 1665.

Sentence: Imprisonment of 12 years with nine years non-parole period.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. McKenry	OPP
For the Accused	Mr P. Bloemen (for Plea) Mr C. Lindsay (for Sentence)	Ann Valos Criminal Law

HER HONOUR:

Introduction

1At the outset I indicate that since my sentencing remarks will be published, I will use pseudonyms throughout.  I do this not to protect the identity of the offender, although it will have that incidental effect, but to protect the identity of his victims.   The law prohibits the publication of any details likely to lead to the identification of any person against whom a sexual offence is alleged to have been committed.[1]  A schedule of substitutions containing the correct names will be kept on the court records.

[1] Section 4 Judicial Proceedings Reports Act 1958.

2Roger Williams[2], between 1 January 2019 and 25 March 2020 you sexually abused your three young granddaughters, Molly[3], Tabatha[4] and Sally[5].  Molly was only seven or eight years old and Tabatha and Sally, who are twins, were even younger, at five or six years old.  Your abuse included penetration, as legally defined, of each of them.

[2] A pseudonym.

[3] A pseudonym.

[4] A pseudonym.

[5] A pseudonym.

3At the time you lived in suburban Melbourne with your partner, Jane[6], and you babysat your granddaughters, your son's children, for about four to six hours once a month, while their parents were at work.   This started when the girls' mother, Ailsa[7], returned to work at the beginning of 2019.

[6] A pseudonym.

[7] A pseudonym.

4Your offending came to light on the morning of 31 March 2020 when one of the girls started crying as Ailsa was getting them ready to be collected by you.  When Ailsa enquired what was wrong, Molly entreated her younger sister not to say anything lest they get in trouble.  Nevertheless, Sally told her mother that you would pull down your pants and make her 'rub [your] thing.'  Molly and Tabatha then disclosed that they too had been sexually abused by you.

5The police were notified that same morning and statements were taken from the three girls by way of a video and audio recording.  Later that same day the police arrested and interviewed you.  I will return to what you said in due course but suffice to say you made significant admissions.  You were charged the next day and spent one day in custody before being granted bail on 2 April 2020.  You indicated your intention to plead guilty to three charges of persistent sexual abuse of a child under 16, one charge for each of your victims, at a committal mention on 4 September 2020 and in fact pleaded guilty to those charges before me on 19 November 2020.

6After a plea on your behalf, it now falls to me to sentence you for your conduct.  In arriving at an appropriate sentence, I am required by law to have regard to a variety of factors which are sometimes overlapping and sometimes contradictory in nature.[8]  Some tend towards leniency and some point the other way.  No one factor automatically prevails over any other.  Rather, I must have regard to them all and give each one the weight it deserves in order to arrive at a just sentence.

[8] Section 5(2) of the Sentencing Act 1991.

Circumstances of the offending

7The agreed facts upon which I sentence you are set out in the Summary of Prosecution Opening.[9]

[9] Exhibit A on the plea.

8Charge 1 relates to Molly and alleges three specific acts.  Charge 2 relates to Tabatha and alleges six specific acts or type of activity.  Charge 3 relates to Sally and alleges five specific acts or type of activity.  All acts occurred within the time frame 1 January 2019 to 25 March 2020.  I will summarise your offending only in as much detail as is necessary to reveal its gravity.

9The first act involving Molly occurred when you were looking after the girls in your house.  You were playing cards on the computer with Molly when you told her you were 'itchy'.  You retrieved some moisturising cream from the bathroom, pumped some on your hands and started masturbating.  You asked Molly to rub the cream into your penis and when she refused you continued anyway.

10On one occasion you were looking after your granddaughters at their house while their parents were out.  You had brought with you some cream in a cup.  Whilst you were alone with the twins in Molly's bedroom you instructed them to rub the cream on your penis and testicles which they did together until Molly came into the room.  The twins then went to the loungeroom, to colour in and watch television.  This conduct is part of Charges 2 and 3.

11On another occasion when you were looking after your granddaughters at their home, you were alone with the twins in the lounge room while Molly was in a bedroom.  You again took out your penis and asked the twins to rub cream into it, which they did, one at a time, until Molly entered the room.  When Tabatha alerted you to Molly's presence you quickly put your penis away until she left, whereupon you asked Tabatha to continue rubbing cream into your penis, which she did.  This episode is part of Charges 2 and 3.

12On another occasion while you were minding the girls at their house the twins followed you to their toilet and you asked Sally to help you hold your exposed penis to 'get the wee out.'  She did this but when Tabatha said Molly was coming you put your penis away without urinating.  This conduct is part of Charge 3.

13On 23 November 2019 the three girls had a sleep over at your house.  Sally was sleeping on a mattress in the lounge, while Tabatha and Molly were in the spare bedroom.  Whilst Tabatha and Molly were reading a book together in bed, you asked if you could join them and got into the bed.  You then proceeded to take out your penis and rub it against each of their legs.  Molly looked under the covers and saw you doing this.  You then asked Tabatha to rub your penis under the covers without cream, which she did.  This conduct is part of Charges 1 and 2.

14The next morning you were showering in your bathroom with the door open.  You asked the twins to stand outside of the shower and, when you finished, to dry you with a towel, which they did.  This conduct is part of Charges 2 and 3.

15On an occasion between 1 January and 25 March this year you were again minding the girls at your house and again playing cards with Molly on the computer whilst Tabatha and Sally were colouring in.  As Molly was sitting in the computer chair you put your hand down her pants and inserted your finger between the outer lips of her vagina.  Molly told you to stop, but you continued penetrating her for approximately one minute.  This is the third act involving Molly and is part of Charge 1.

1625 March 2020 was the last time you minded your granddaughters, and it was at your house.  Whilst the twins were in the computer room with you, you again made them rub cream into your penis and testicles and catch your ejaculate with their cupped hands.  This is part of Charges 2 and 3.

17On this occasion you also showed the twins pornographic videos on the computer including images of a female licking a male's penis.  You turned the video off when Molly entered the room and saw it, but turned it back on as soon as she left.  You then asked the twins to emulate the video.  When Sally refused you offered her and Tabatha chocolate, which they tried but didn't like.  You then asked them again to suck your penis and inserted it into each girl's mouth in turn with the other watching.  You then asked them to take turns sucking your penis to a count (for example Tabatha to five seconds, Sally to 13 seconds).  They each sucked your penis three times.  The showing of the video is one of the acts alleged in Charges 2 and 3 as is the sucking of your penis.

18Quite apart from the specific occasions I have already detailed and which form part of the charges, Tabatha disclosed other uncharged occasions where she was made to rub cream onto your penis and yet another occasion in her cubby house when you took out your penis and asked her to rub cream on it but she told you she did not want to do it and you did not insist.  There was also another uncharged act involving Sally before her sixth birthday in October 2019 when she was lying down on a couch with you and you forcefully rubbed her bottom and anus area with your hand over the top of her clothes causing her pain.  She told you to stop and you did.

Objective Gravity of your offending and moral culpability

19I turn to the objective gravity of your offending and your moral culpability.  On any view the sexual abuse of children is a serious crime.  The maximum penalty of 25 years' imprisonment unambiguously reflects the seriousness with which Parliament regards your particular offence of persistent sexual abuse of a child under 16, as does the fact the offence is subject to various specific sentencing provisions which operate to constrain the sentencing discretion in favour of harsher penalties.[10]

[10] Persistent sexual abuse of a child under 16 is a Category 1 offence as defined in section 3(1)(g) of the Sentencing Act 1991, which pursuant to 5(2G) of that Act must be punished by a custodial order not in combination with a community corrections order.   Further, it is a serious offender offence and has a standard sentence of 10 years imprisonment. 

20Whilst conceding that your offending was serious, your counsel, Mr Bloemen, submitted that it was at the lower end of the spectrum for the particular offence of persistent sexual abuse of a child under 16, in that the number of acts constituting each offence was limited, the duration of the offending was relatively confined, and the acts were not of the most heinous kind.

21It is, unfortunately, true that the courts often see offending against children spanning years and involving a vast number of individual acts, sometimes of the vilest kind.   However, I do not accept that your offending was at the lower end of gravity for this offence.

22Our Court of Appeal indicated in 2009[11] that it is the persistence of the sexual relationship over time which is at the heart of the offence.  Such persistence is likely to heighten the victim's fear that the abuse will occur again and increase the damage he or she suffers.  At the same time the offender is likely to become progressively more aware of the damage he or she is causing.  However, the Court said:

'It would be quite wrong to conclude that the offender's culpability varies in direct proportion to the length of the relationship.  Other factors may be of greater significance, such as the nature of the pre-existing relationship between offender and victim, and the nature and intensity of the sexual abuse which takes place.'

[11] DPP v DDJ [2009] VSCA 115, referred to in DPP v Polat [2020] VSCA 174. At that time the offence was called maintaining a sexual relationship with a child under 16 contrary to section 47A of the Crimes Act 1958 (Vic).

23Although not years, your offending spanned 15 months which was still a long time, especially in the life of your very young victims.  For the whole of that time they lived with the knowledge that whenever they were left alone with you there was a risk you would subject them to sexual acts, and often you did.  This would have been all the more confusing and upsetting because of your relationship to them.  Further, your offending only came to an end because your granddaughters told their mother what you had been doing to them, not because of any decision you made.

24Similarly, whilst the number of acts represented by the charges might be relatively few that is at least partly reflective of your somewhat limited opportunity to offend given you only minded the girls about once a month.  Further, those acts occurred against the background of other uncharged acts as I have already outlined.

25None of that is to say you will be punished beyond the charges and nor do I assume that you would have offended more often if you had had the opportunity, but it is to put your charged offending into proper context.

26Whether or not, as our Court of Appeal suggested in 2009, you became progressively more aware, over that 15 months, of the damage you were causing to your granddaughters, there is no doubt your moral culpability increased with your repeated offending.  That is because, at the very least, you had ample opportunity to reflect on what you were doing and desist.  But desist you did not.  If anything, your conduct escalated as the most serious abuse of each girl occurred last.

27That leads to me to the nature of your sexual abuse.  At its worst, you procured the sucking of your penis by two six-year-old girls in each other's presence after showing them graphic pornography of the same activity.  You also inserted your finger into the vagina of an eight-year-old and procured the six-year-olds to rub your penis until you ejaculated into their cupped hands.  The utter innocence of the six-year-olds is illustrated by their belief, as you told them, that what came out of your penis was the very cream that they had rubbed into it.  Such acts can only be described as depraved and despicable.

28In short, your offending was calculated, premeditated and protracted.  You totally abdicated your responsibility as a grandfather to protect and nurture your grandchildren.  Instead, you exploited their love and affection and manipulated them into engaging in a variety of sexual acts well beyond their comprehension.  In so doing you violated innocent children, your own flesh and blood, for your sexual pleasure.  Your breach of their trust was egregious as was your breach of the trust their parents and society placed in you as their grandfather.  The harm you have caused to your family is immeasurable.

29There can be no doubt you were well aware that what you were doing was wrong.  On several occasions you stopped what you were doing with the twins when their elder sister entered the room.  You knew she did not approve and you told the police that she could probably understand a lot more than the twins.  You also told the police that your partner would be devastated to learn what you had been doing.

30Having regard to the extreme youth of your victims, the gross breach of trust, the damage you have inflicted on your victims and family and the activity you engaged in, I consider all charges to be at least in the mid-range of gravity for the crime of persistent sexual abuse of a child under 16, with Charges 2 and 3 being more serious than Charge 1.  Further, I consider your moral culpability to be high.

Current Sentencing Practices

31One of the matters to which I must have regard in arriving at an appropriate sentence for you is current sentencing practices which may be gleaned from statistics or sentences imposed in other cases or both.

32Since 1 February 2018, persistent sexual abuse of a child under 16 has been a standard sentence offence under the Sentencing Act 1991 with the standard sentence for an offence of mid-range objective seriousness set at 10 years with a presumed minimum non-parole period of at least 60 per cent of the head sentence.[12]

[12] Sections 5A and 11A of the Sentencing Act 1991.

33The methodology for sentencing standard sentence offences is not that I engage in a two-step process of first assessing the objective seriousness of your offence compared to some hypothetical mid-range offence and then work up or down depending on your personal circumstances or other factors.   Rather, I must take into account the standard sentence and standard non-parole period in the same way as I take into account the maximum penalty, and indeed all other relevant sentencing factors, to arrive at an appropriate sentence by a process known as instinctive synthesis.[13]

[13] Brown v The Queen [2019] VSCA 216. Lockyer (a pseudonym) v The Queen [2020] VSCA 321 recently confirmed the importance of avoiding a two tiered approach and to giving proper weight to relevant mitigating factors, including personal circumstances of the offender, his or her prospects of rehabilitation and, where appropriate, a plea of guilty particularly if coupled with remorse.

34The reason for looking at current sentencing practices is to promote consistency of approach in sentencing, particularly, the application of relevant sentencing principles.  Whilst no two cases are ever truly the same, and other sentences are not precedents to be applied or distinguished, sentences imposed in comparable cases may provide a convenient yardstick against which to measure any sentence proposed in the instant case.  In the case of offences subject to the standard sentence regime, such as yours, the consideration of other sentences must be confined to other sentences imposed under that regime, that is, sentences imposed for offences committed after 1 February 2018.[14]

[14] Sentencing Act 1991 (Vic) s 5B(2)(b)

35I am grateful to Mr Bloemen for referring me to five cases for the purposes of comparative sentencing, but as only one involved sentencing under the standard sentencing regime, they are of limited assistance.  The one standard sentencing case was DPP v Robards[15] which, coincidentally, was also the most similar factually as it involved offending by a grandfather, albeit against a single victim.  The sentence imposed in that case following a plea of guilty was six year six months with a non-parole period of four years.  However one might rate the gravity of your offending against the offending in that case, it is important to note that one case does not a sentencing practice make and nor, as I have already said, does it constitute a binding precedent.

[15] [2020] VCC 1665.

36Ultimately my duty is to impose a just and appropriate sentence on you in the unique circumstances of this case.

Impact of your offending

37Other matters I am required to take into account are the impact of your offending on your victims and their personal circumstances.[16]

[16] Sentencing Act 1991 (Vic) s 5(2)(daa), (da) and (db).

38At the very least you have fractured your family unit and deprived all your children and grandchildren of a relationship with their father and grandfather.

39The full impact of your offending on your granddaughters cannot possibly be known at this stage.  They are far too young, and your offending is too recent. 

40However, in her victim impact statement, Ailsa describes the effect of your crimes so far, starting with the utter distress shown by Sally on the day she told her mother what you had been doing.  Before this Ailsa had wondered why the girls had become so anxious, angry and scared.  She said that now they are constantly reminded, by simple things, of you and what you did to them and they sometimes shy away from close physical contact.  They are receiving counselling and their schoolwork has suffered.   Ailsa's victim impact statement also includes a picture drawn by each of them conveying their anger at what you made them do and relief at not having to see you anymore.

41There is also a legal presumption that premature sexual activity causes long term and serious physical and psychological harm to children whether or not they consent.[17]  Further, the courts have recognised that rehabilitation of children who have been sexually abused may be more difficult than rehabilitation of the offender.  In a well-known case of Toomey, in our Court of Appeal, it was said in respect of such children:

'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.'[18]

[17] Clarkson v The Queen (2011) 32 VR 361, 368 [26], 371 [33] and Adamson v R [2015] VSCA 194 [56].

[18] DPP v Toomey [2006] VSCA 90 [22].

42Of course, as I have already said, what you did, did not just affect your granddaughters.  The repercussions were much wider.  The victim impact statements of your son, John[19], and his wife Ailsa, detail how their life changed the day their daughters told them what you had been doing.  Each of them blames themselves for not protecting their children, for not realising that you, not some stranger, were the person they should have been guarding their children against.  They constantly worry about the wellbeing, including the future wellbeing, of their daughters.  They worry about whether their daughters will ever be able to have normal relationships, to be intimate with someone without thinking of you.  John has lost confidence and become anxious and reclusive.  Ailsa describes his difficulty in reconciling the fact that you, his own father, could harm his daughters in this way.  Ailsa is also anxious and depressed.  They have both sought treatment for their mental health.  They have also suffered financially due to John changing his work so that he could be closer to home.

[19] A pseudonym.

43John and Ailsa should be assured that they are in no way to blame for what you did.  They were entitled to trust their children's grandfather.  They are right to feel proud of their children for being brave enough to speak up.  By giving them love and support and professional help they are doing all they can to ensure their children, your victims, have the best possible future.  Finally, John, should be assured that he is not his father.  Your actions do not reflect on him and he need not feel ashamed because of what you did.

Plea of Guilty, co-operation and remorse

44I turn now to consider the extent of your co-operation and remorse.

45Whatever might be said about your insight and remorse there is no doubt your admissions to police were significant and extensive.  You are entitled to the full benefit of those admissions just as you are for the fact you pleaded guilty and did so at a very early stage.  In pleading guilty you facilitated the course of justice and took legal responsibility for your crimes.  You also spared your victims the trauma of coming to court to give evidence.  These matters are particularly important at present because the criminal justice system is under considerable strain due to COVID-19.  Your level of cooperation entitles you to a significant discount in your sentence.

46The question of remorse is more difficult.  Whilst indicative of remorse, a plea of guilty is not, of itself, proof of that fact.  People can plead guilty for many reasons.  Further, as the Courts have made clear, true remorse is not anxiety at the prospect of being punished nor simply regret.  True remorse involves genuine contrition and a desire to atone for one's behaviour.[20]

[20] Barbaro & Zirilli v The Queen [2012] 226 A Crim R 354 at [36] and [38].

47Mr Bloemen submitted that your insight and remorse were evolving processes.  You were interviewed by the police less than a week after you last abused your granddaughters.  You admitted the substance of all but two of the allegations put to you, that being the digital penetration of Molly, and Tabatha masturbating you on the night of the sleep over.  You also admitted more instances of the twins rubbing cream into your penis than you were asked about.  However, you also minimised your culpability.  You denied a sexual motivation and attributed many of the events to happenstance or the girls' curiosity.  You spoke of 'allowing' the twins to masturbate you.  You denied they were reluctant participants and quite remarkably claimed they were quite capable of making up their own mind about whether to do such things.  You also said that Sally had accidentally seen the pornography depicting oral sex on your computer, which you described as 'soft', and only after she asked to see it again did you reluctantly show her.

48After you were charged and bailed you commenced seeing a psychologist, Dr Owen.  By the time you saw clinical and forensic psychologist Jeffrey Cummins on 21 September this year you had had nine sessions with Dr Owen.  Although you told Mr Cummins that you were 'now taking full responsibility for [your] offending behaviour' and were apologetic, you continued to minimise your conduct.  You maintained the lie that your culpability consisted of you permitting the girls to apply cream to your penis and watch pornography, rather than you having instigated or orchestrated these scenarios.  Further, you attributed the reason for your offending, at least in part, to a decline in your sexual and emotional relationship with your partner Jane, an explanation which I find implausible and which Mr Bloemen did not press.

49It may be that your account to Mr Cummins, which disappointingly appears not to have been challenged by him, simply reflects your inability to publicly acknowledge the fact you were sexually interested in your grandchildren.  It may be that you are too ashamed and embarrassed to admit the truth.  Whatever the explanation, the state of the evidence leaves me unable to conclude that you have anything other than a nascent appreciation of the extent of the harm you have perpetrated and correspondingly limited remorse.  Indeed, despite his apparent acceptance of your account, even Mr Cummins described you as being at the 'relatively early stage' of coming to terms with the magnitude of your offending and its likely consequences.

50The fact I have not been persuaded that you have any greater remorse is not aggravating, it simply means you do not get the benefit of the additional discount in sentence to which you would be entitled had I so found.

Background and personal circumstances

51Your background and personal circumstances were set out in detail in the Plea Submissions and the report of Mr Cummins dated 7 October 2020, Exhibits 1 and 2 on the plea respectively.

52Very briefly, you are now 65 years old having been born in Geelong in 1955.  You are part of a sibship of five and you are the second eldest.  Your family lived on a sheep and dairy farm outside Geelong and you describe being raised in a ‘caring and loving’ family.  Your father was a livestock transport driver and your mother maintained the house.  Between the ages of five and 14 you helped on the farm before and after school and on weekends.  Both your parents are now deceased.  You are still in contact with all of your siblings but, at the time of the plea, had not told any of them about your current predicament.

53You left school when you were 16.  You had little leisure time during your childhood however you enjoyed playing sports including football and tennis.  You told Mr Cummins that you have been 'heavily involved' in sports through your life and also enjoy golf, squash and volleyball.

54You completed one year of a five-year university degree in applied chemistry and later qualified as an accountant after attending night school.

55You have worked from the age of 17, initially at the Ford factory in Geelong and then at the old State Bank.  Over thirty years you worked in various roles in the banking industry, including as a bank clerk, branch manager and as a mobile home lender.  During this period, you also worked three to four nights per week counting money from tills at a hotel in Preston.  You retired from banking in 2003 and commenced working as a sub-contracted parcel deliverer for Australia Post with your ex-wife.  You worked in this role until 2015 when you were dismissed by Australia Post because your delivery van was stolen.  You then retired.

56You met your ex-wife in 1973 and married in 1980.  Together you had four children being two sons and two daughters who are now all aged in their thirties.  You amicably separated in June 2006.  You were on good terms with your ex-wife and all your children until this offending came to light.  You are now estranged from all of them.

57You have been living with your partner Jane since November 2006 at her home.  She has remained supportive of you but is receiving counselling as a result of your offending.

58You report no significant health difficulties.  You use eye drops for glaucoma and have regular testing for an enlarged prostate.  You are a non-smoker and have never had any issues with substances, legal or illegal.

Your character and risk of reoffending

59Turning to your character and risk of re-offending, you have no prior convictions and as I have outlined, have a good employment history.  That this is not uncommon for offending of this type does not detract from your entitlement to be sentenced as a person who, apart from this offending, has been a worthwhile member of society and of good character.

60The fact you commenced offence specific treatment with psychologist Dr Owen whilst on bail is in your favour.  Mr Cummins regarded it as essential that you continue to receive such treatment and noted that one of the personality tests he administered suggested that your tendency to worry may motivate you to do this.  He assessed your risk of further sexual offending against underage females as low to moderate, trending towards low.  However, in reaching that view, Mr Cummins described your offending as 'situationally motivated' and reflective of your feelings of rejection by your partner.  If Mr Cummins was suggesting your offending was opportunistic rather than calculated, I do not accept it.  What you did was more sinister than that.  Further, as I have already said I do not accept that you chose to offend against five to eight-year-old children because you felt neglected by your partner.  However, given your age and the fact you have never offended against young children before, I do accept that without ready access to children, which you will not have when you are released, you will be at low to moderate risk of re-offending.

The burden of imprisonment

61In determining the appropriate sentence I take into account, in your favour, that a term of imprisonment may be more difficult for you than other prisoners.

62First, you are man of 65 with no prior convictions of any sort.  Experiencing a term of imprisonment for the first time is difficult for anyone, let alone someone of your age with absolutely no prior involvement in the justice system.

63Secondly, whilst Mr Cummins considered you to be only mildly anxious and mildly depressed, he believed you were repressing your emotions and that your mental health will very probably deteriorate in prison.

64Finally, although this is not peculiar to you, you are being sentenced during the COVID–19 pandemic.  Whilst the chance of you being infected with coronavirus in prison is speculative, I accept that the worry of contracting the virus in prison is an additional burden, as is the curtailment of various activities and programs and the abolition of personal visits.

Purposes of Sentencing

65In addition to specifying matters to which I must have regard in arriving at an appropriate sentence, the Sentencing Act 1991 prescribes the purposes, indeed the only purposes, for which a sentence may be imposed. These are just punishment, deterrence, rehabilitation, denunciation, and protection of the community. Generally, a court is obliged not to impose a more severe sentence than is necessary to achieve those sentencing purposes and a custodial sentence must only be imposed as a last resort. Further, when there are multiple charges, such as here, the total effective sentence must not offend the principle of totality. What that means is that an offender must not be punished any more than is proportionate and appropriate to his or her overall criminality.

66In your case those general sentencing principles are qualified by some specific provisions applicable to your offences.  First, persistent sexual abuse of a child is a special category of offence which requires the imposition of a custodial sentence.[21]  Secondly, after your sentence on the first offence, you will be a serious sexual offender.  Thereafter, I will be required to consider protection of the community as the principle sentencing purpose and will be entitled to impose a disproportionate sentence to achieve that purpose.  Finally, your status as a serious sexual offender gives rise to a statutory presumption of cumulation of the individual sentences.  The more serious the overall offending the more the presumption will operate to moderate the principle of totality.[22]

[21] Not being one in combination with a community corrections order, section 5(2G) Sentencing Act 1991.

[22] DPP v Bales [2015] VSCA 261 at [38] ff and Mush v The Queen [2019] VSCA 307 [89] to [91].

67Even without those provisions your offending clearly warrants a substantial term of imprisonment and this was conceded by Mr Bloemen.  The prosecution have not submitted that a disproportionate sentence is necessary and I am satisfied having regard to my assessment of your risk of reoffending, that I have enough sentencing discretion to achieve the purpose of community protection in your case without doing so.[23]  Similarly, although your charges represent offending against different victims, I consider that the balancing of the presumption of cumulation and the principle of totality requires that I not order full cumulation of each sentence, particularly taking into account that the offences entirely overlap in terms of dates and considerably overlap in terms of circumstances.  Indeed, I consider I need to order substantial concurrency of sentences in order to avoid a crushing and wholly disproportionate sentence.

[23] DPP v DDJ [2009] VSCA 115 at [29].

68The courts have repeatedly emphasised that in sentencing for sexual offences against children, general deterrence and denunciation are paramount sentencing considerations.  This applies particularly to offenders like you who are entrusted with the care of their victims, whether as family members or otherwise.  Anyone who is tempted to offend against children in the belief they can do so with impunity needs to know that when their crimes come to light, they will be punished severely.

69The case of Toomey, to which I have previously referred, emphasised the need for such sentences to vindicate not only the individual victims, but also the values of society, 'fundamental to which is the protection of its children'.[24]

[24] Director of Public Prosecutionsv Toomey [2006] VSCA 90 at [17] and [22] per Vincent J.

70Toomey also made the point that crimes such as yours are extremely serious not only because they impact the individual victims, but because they damage the community as a whole.  To quote again:

'The exposure over recent years of the extent of the incidents of abuse of children in our community by persons entrusted with their care has created much distrust at all levels and threatened the very capacity of adults to interact in a normal healthy fashion with them'.[25]

[25] Ibid at [20] per Vincent J.

71In the case of sexual abuse by parents or grandparents, the damage to the family unit is of course also immense.

72Although not as important as general deterrence and denunciation, I consider the principles of specific deterrence and community protection also have a role to play in your case.  That is, as well as deterring others, my sentence needs to deter you from reoffending and to protect the community.  Of course, one of the best ways to protect the community is by your rehabilitation and my sentence will allow for that in the fixing of the non-parole period.

73I have had regard to the standard sentence of 10 years for each of your offences but having regard to matters other than the objective gravity of the offending consider a lesser sentence is warranted in each case.

74Weighing up the competing considerations as best I can, including the various mitigating factors I have already outlined in detail, the sentence I impose is as follows.

75Now before I do that, can I ask what the pre-sentence detention is?

76MR McKENRY:  Twenty-nine days.

77MR LINDSAY:  That's agreed by defence, Your Honour.

78HER HONOUR:  Twenty-nine, thank you.

Sentence

79On Charge 1, I convict and sentence you to seven years.  On Charge 2, I convict and sentence you to eight years and this will be the base sentence.  On Charge 3, I convict and sentence you to eight years.  I direct that two years of the sentence on Charge 1 and two years of the sentence on Charge 3 be cumulative on the sentence on Charge 2 and on each other, making a total effective sentence of 12 years.  In respect of that sentence I fix a non-parole period of eight years.  That is the earliest time at which you can be released.

Presentence Detention

80I declare that you have served a total of 29 days pre-sentence detention, not including today, in respect of this sentence and order that this declaration be entered in the records of the court and that the period be deducted administratively.

Section 6AAA

81If you had not pleaded guilty to these charges and been found guilty by a jury, I would have sentenced you to a total effective sentence of imprisonment of 16 years with a non-parole period of 12 years.

Sex offender registration

82Mr Williams, there are two other matters.  The first one is to do with the Sex Offender Registration.

83Your registration under the Sex Offenders Registration Act 2004 (Vic) is mandatory.  You will be required to comply with the reporting obligations under that Act for the rest of your life.

84The Sex Offenders Registration Act provides that you must be given a notice setting out your reporting obligations under the Act and what will happen if you do not comply with those obligations.

85The Court will make sure that that notice is sent to you in custody.

86Even though you will have a copy of that document, I will just give you an idea of what is involved.

87You will be required to report to Victoria Police within seven days of being released from custody.  You will be interviewed and details taken.  You will then be required to go to your nominated police station each year to make an annual report.

88You will have to give details of your address, occupation, vehicles, internet provider, social media usernames, passwords and the like and notify police of any changes in those details.  You have to notify of intended travel interstate and seek permission to travel overseas.  It is all set out in that document.

89If you do not comply with your reporting obligations that is a criminal offence and if you do not comply you will be charged and will have to appear in court again.

Ancillary orders

90The second matter is that the prosecution seek a disposal order for a bottle of Cetaphil cream and a computer tower and I will make that order.

91So, Mr Williams, do you understand the sentence that I imposed?

92OFFENDER:  Yes, I do.

93HER HONOUR:  All right and can I just ask the prosecution and the defence, are there any things they wish to raise in relation to the sentence, any matters that I have overlooked or any incorrect calculations or anything like that?

94MR McKENRY:  Not at all, Your Honour, all correct.

95MR LINDSAY:  No, thank you, Your Honour.

96HER HONOUR:  All right, thank you, we will adjourn the court.

97MR McKENRY:  As Your Honour pleases.

98MR LINDSAY:  As Your Honour pleases.

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