DPP and Bikendi

[2014] VCC 856

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

AT  MELBOURNE

DIVISION

Case No. CR-13-00218

DIRECTOR OF PUBLIC PROSECUTIONS

v

MITCH BIKENDI

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	11 and 12 March; 29 April; 7 May 2014
DATE OF SENTENCE:	23 May 2014
CASE MAY BE CITED AS:	DPP and Bikendi
MEDIUM NEUTRAL CITATION:	[2014] VCC 856

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW                  

Catchwords:             Sentence – Plea of guilty - Historical sex offences against children – Aged offender with health issues – Impact on victims – Subsequent offending – Professed lack of memory

Cases Cited:DPP v Toomey [2006] VSCA 90; R v Murray [2011] VSCA 232; Rv Stalio [2012] VSCA 120; R v TRG [2011] VSCA 337.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr B. Stougiannos	Director of Public Prosecutions
For the Defendant	Ms S. Dixon	Victoria Legal Aid

The full names of each of the victims in this matter have not been used in order to preserve their  anonymity. A pseudonym has been used for the name of the accused.

HER HONOUR:

1       Mitch Bikendi, you have pleaded guilty to one charge of indecent assault on a girl under the age of 16 years and four charges of indecent assault upon a male person.  The maximum penalty for Charge 1 is three years' imprisonment and for each of the other offences the maximum penalty is five years' imprisonment.

2       The offending involves three victims; LF (now McM), DF and PF.  They are siblings and were aged between seven and 12 years when they were sexually assaulted by you.

3       You were a trusted family friend who offended against them in the sanctity of their family home or at their family holiday home (this was where most of your offending took place), as well as in your home.

4       You were born on 16 July 1943 and so you are now 70 years old.

5       DF was born on 3 September 1957 and is now 56, LMcM was born on 2 January 1959 and is now 55, and PF was born on 14 April 1961 and is now 53.

6       You first met the F family in 1965 when they bought a holiday home in country Victoria.  You became a trusted friend of the family and would regularly look after the complainants or take them on camping trips.

Re charge 1

7       

The basis for Charge 1 on the indictment is that on an afternoon between

2 January 1966 and 7 November 1967, in a bedroom at the F’s holiday home, LMcM, who was aged between seven and eight years, was on top of you.  You placed your hand down the back of her pants then inserted one of your fingers into her vagina.  This caused pain and bleeding and she cried.  You then cuddled her and tried to quieten her down, promising rewards if she did not tell anyone.  You also said that it was your ‘special secret’ and if she told anyone she would get into trouble.  You were at an age between 22 and 24 years at the time you committed this offence.

Re charge 2

8       

In relation to Charge 2, this is a representative charge concerning

DF.  On a weekend between 8 November 1967 and 2 September 1969, you and DF, who was then ten or 11 years old, went to the holiday home alone.  You slept in the same bed there.  You had DF roll over and place himself in a position described as ‘doggy style’; you rubbed your penis between the cheeks of this complainant's buttocks.  DF does not know if you penetrated him but recalls it feeling very uncomfortable and hurting him.  You were at an age between 24 and 26 when you committed this offence.  

9       This occasion is representative of a number of occasions which occurred over a two year period, where you offended in the same way against DF.  He said that this occurred regularly, every time you and the second complainant went to the F’s holiday home.  When I refer to the 'second complainant' I am referring to DF.

10      I sentence you in respect of the detailed instance of this offending.  As the charge is a representative one, I am unable to inflate the sentence to accommodate the other instances of offending in respect of this charge.  However I am able to, and I do take into account, the impact on the victim of the entirety of the offending and bear in mind that this was not a one off occasion in respect of this victim, lest it be said otherwise.

11      Charges 3 to 5 all concern PF, who is the youngest of the three victims in this family.

Re charge 3

12      

In relation to Charge 3, the basis for this is that on an occasion between

14 April 1970 and 13 April 1972, you touched and shook the third complainant's penis whilst you and he were in the garage of his family home.  You told PF about a special club you were in with his brothers and sisters, and that it would be good if he joined because you could go away on trips together on weekends.  You asked him "Is something happening?" but the third complainant said that at the time he really did not know what was going on or what you meant.  PF was nine or 10 years old at the time you committed this offence and you were at an age from 26 to 28 years.

Re charge 4

13      

In relation to Charge 4, the basis for this charge is that on a date between

14 April 1970 and 13 April 1973, you were at your house with PF.  You were in the lounge room and you played with the third complainant's penis whilst his pants were down around his ankles.  You were partially undressed with your stomach exposed.  On this same occasion, you also rubbed your penis between the third complainant's buttocks.  PF was at an age of between nine years, up to an age of 11 years.  That is, he was nine, ten or 11 at that time and you were at an age from 26 to 29 years, that is 26, 27, 28 or 29, from my understanding.

Re charge 5

14      The basis for Charge 5 is that on an occasion between 14 April 1970 and 13 April 1972, you, DF and PF were all in the same bed at the F’s holiday home.  PF recalls that one morning you touched his penis and also stuck your penis between the cheeks of his buttocks.  You were making grunting noises and the third complainant recalls having a wet backside.  The third complainant recalls you saying "That’s something different".  At this time, PF was nine or 10 years old and you were at an age from 26 to 28 years.

15      In the mid 1980’s, LMcM reported her allegations to police but no charges were pursued at this time and you were none the wiser about her actions as at this time.

16      PF reported his allegations on 26 October 2011 and LMcM reported her allegations once again on 28 October 2011, whilst DF reported his allegations on 14 November 2011.

17      On 6 March 2012 you were interviewed by police about the allegations but claimed to have no recollection of the events.  You said that you had suffered a stroke which had affected your memory.  I shall return to this aspect of your memory a little later on.

18      Mr Bikendi, as has been properly conceded by Ms Dixon, your offending is most serious.  Each of the victims were of tender years when you offended against them, and there was a significant age gap between you and each child when you committed the offences.  Further, you were a trusted family friend, entrusted with their care, and you grossly breached the trust that the victims placed in you, and the trust that their parents had placed in you.  Many of these instances occurred in the family holiday home or the family home; both being places, in particular, where they were entitled to feel safe and happy, and places with which happy memories ought be associated.  These circumstances aggravate your offending.

19      In relation to LMcM, you sexually penetrated her when she was only a young girl, causing her to bleed and causing her pain.  At that time, digital penetrations were not referred to as sexual penetration but this is what you did.  Further, you both cajoled her and threatened her into silence.  These matters further aggravate your offending insofar as the first complainant is concerned.  I regard this form of indecent assault of a girl as a particularly serious example of that offence.

20      In relation to the occasions when you rubbed your penis between the buttocks of the second and third victims, I regard this offending in particular as serious examples of the offence of indecent assault on a male.

21      The impact upon each of the victims has been devastating.

22      PF and DF read their victim impact statements aloud, a most courageous thing to do.  LMcM would have also done so if she had not been overseas at the time of the plea hearing.

23      In sentencing you, I have taken into account the dreadful impact that your offending has had upon each of the victims.  PF spoke of the way in which your offending has eaten into his self-esteem, his ability to socialise and to have intimate relationships.  It has caused him, and continues to cause him, dreadful anguish and emotional pain, suffering vivid flashbacks and a recurring nightmare which has terrified him.  Part of his coping mechanism has been to distance himself from the offending, referring to himself as a child and in the third person.  The lack of control that he suffered at your hands continues to haunt him.  To his immense credit he has found solace and a sense of control in music performance and in teaching music.  He has done so in spite of your actions, which is a tremendous feat.  I am gratified to hear that he does not blame himself for anything that you did.  However, his mental health has suffered a great deal.  I was saddened to hear that he feels ashamed about this.  Mr PF was hospitalised in 2000/2001 with a sudden onset of seizures, sweats and an inability to speak, which were said to be caused by his anger and anxiety for what you had done.  I want to emphasise to PF that his reaction to your offending is perfectly understandable and explicable, and there is nothing to feel ashamed about.  Many victims of sexual assault have reacted in similar ways, and as I said at the plea hearing, many victims, especially child victims, do not disclose offending against them until a long time after the offences have been committed.  

24      PF reached another crisis point in 2011 when he watched a film about child sexual abuse and identified with the victims, to a point where he resolved to complain to the police about what you had done.  He continued to suffer as he endured the committal proceedings.  His perception of you at that time was that you did not care about what you had done to him and he felt dirty about the crimes you had committed.  He said that his self-esteem hit a new all-time low and he has found your professed lack of recollection of your offending as especially painful.  He continues to endure a great deal of suffering which manifests itself physically in feelings of nausea, stuttering, shaking and sleeplessness.  He continues to cry when he turns his mind to your offending.  He said that he is proud that he had finally stood up, and so he should be.  As to his apology for taking so long to find the courage to do so, no apology is necessary.

25      DF spoke of his enduring lack of self-confidence and of his inability to form close relationships, even with his own children, because of your offending. He said that he feels you stole his childhood and destroyed the notion he had been taught that adults could do no wrong.  To his credit, he has been able to overcome a great deal of painful baggage in his life and achieve some good things but wonders at how much more he could have achieved, if not handicapped by your offending.  He said that he can now understand why some people have suicided over sexual abuse, that he has had to live with, as he puts it, your ‘disgusting special secret’ for nearly 50 years, "A totally embarrassing and hurtful secret" which he wishes "never existed".

26      LMcM said in her victim impact statement that before you offended against her she was a happy, confident and bright child who enjoyed family life.  She said that she and the two other victims were the three youngest of a large family and that she respected, trusted and obeyed her parents and their friends.  She said that in light of this, your offending against her and her two brothers had profoundly affected her life, relationships and self-esteem.  She said that in the immediate aftermath of your offending, she felt frightened, confused and isolated, and she distanced herself from her family, physically and emotionally.  She took any opportunity to stay away from you, which meant avoiding her family holiday home and her family.  She refers to a rift in her relationship with DF for a long period, but she says when she learned of the abuse in 2011, she became physically ill and felt immense guilt, which is ongoing, for not protecting him.  I want to stress to Ms McM that you have nothing to feel guilty about.  You did not even know that your brothers were being sexually abused at the time, but even if you had, you were only a child yourself, doing your best to protect yourself, which is completely understandable.  McM speaks of ‘assaults’ and ‘crimes’-that is in the plural;  however I put this to one side insofar as there is any suggestion that you are to be sentenced for anything other than a single non-representative charge in respect of offending against her.  She said that, as a result of your threats and inducements, which I have construed to be the things you said to her at the time you committed Charge 1, she became very fearful and remained silent for many years.  She said that by the time she realised what you had done, she felt ashamed and complicit in your crimes.  This sense of shame endured and led to her maintaining silence.  Your offending has impacted on the first complainant's ability to be intimate with her husband, and the effects of what you did to her have endured, even with the benefit of counselling and a supportive husband.  She said that you robbed her of her virginity and that your offending was the backdrop for her difficult experience of puberty.

27      Mr Bikendi, these are the very real consequences of your offending upon the three victims in this case.

28      Your conduct is deserving of punishment which is just in all of the circumstances, and your conduct must be denounced. As Vincent J said in DPP v Toomey [2006] VSCA 90 at paragraph 17:

Often such victims, experiencing unjustified feelings of embarrassment, shame and guilt that have been induced by the behaviour of the perpetrator, will continue to remain so for many years.  Accordingly, and very frequently, the commission of the offences will not be exposed until long afterwards.  Considered in this light, it is in my opinion apparent that the principle of general deterrence must assume very considerable significance as a sentencing consideration.  Further, it is incumbent upon the courts, however long ago the offences were committed, to express the denunciation of the community of such behaviour, through the sentences imposed on perpetrators.  They must be seen to vindicate the values of the society that they represent, fundamental to which is the protection of its children.

29      While the facts in Toomey are somewhat different to those here, the same sentiments as those expressed by His Honour Vincent J, are pertinent in this case.  I attach significant weight to general deterrence in a bid to deter others from offending as you have.

30      You are to be sentenced as a person without prior convictions at the time that these offences were committed.  However, you have a number of subsequent convictions for offending against children, albeit that these convictions are now rather dated.  These are relevant to your prospects of rehabilitation, to the weight I need to apply to specific deterrence and protection of the community.  

31      Having committed the offences for which I now sentence you, you commenced to commit further sexual offences against children ten years later.

The Victorian Leap report shows that on 1 March 1982, you were released on a five year good behaviour bond in respect of four charges of indecent assault, with a condition to receive treatment from a Dr McMurde as was deemed necessary.  This disposition was in respect of PC, who was eight to nine years of age, and involved you touching his penis; as I understand it; SA, who was eight,  and involved you touching her vagina over her clothes; SA, who was aged nine, and involved you touching him on his penis; and

CH, who was nine years old, and involved you touching his penis.

32       It is evident that any treatment you received from Dr McMurde at that time, was to little or no effect, as you continued to offend.

33      As best I can decipher, the New South Wales criminal history report reveals that on 5 June 1992, at the Wollongong District Court, you were convicted of three charges of indecent assault, one charge of an indecent assault of a person under your authority, one charge of an act of gross indecency of a male under 18 years and a further charge of indecent assault.  One of the victims was your step child who was aged between 12 and 15, and involved you putting your penis between the cheeks of his buttocks.  You were sentenced to a term of imprisonment but it is unclear as to what the term of imprisonment was.  Efforts made by the Crown to clarify this through contact with relevant New South Wales agencies have not been fruitful.  However, it appears that in respect of the first three matters, you were sentenced to two years' imprisonment, and in respect of the final indecent assault you were sentenced to one year imprisonment.  It is not clear what the total effective sentence was but it appears that the minimum term was three years, commencing on 5 June 1992.  

34      On 2 June 2000, at the Bathurst District Court, you were sentenced to three years' imprisonment commencing that day with a non-parole period of 18 months, in respect of a charge of sexual intercourse with a child under 16 years.  You were also sentenced to four months imprisonment for indecent assault of a child under 16 years.  You appealed these sentences but then abandoned your appeals.  I was informed by the Crown that these convictions concerned K-LP, who was ten, and involved you touching her on the vagina, and DP, who was eight, and involved you inserting your finger into his anus.

35      It also appears that you were found not guilty of two charges of indecent assault of a child under 16, and one charge of sexual intercourse with a child under 16.

36      In sentencing you, I am to have regard to current sentencing practice, as in present sentencing practice, and I am to have regard to sentencing practice at the time you committed these offences, as best as I can ascertain this, in accordance with the principle of equal justice.  I have also had regard to the community’s abhorrence of offending such as yours. (Stalio v R [2012] VSCA 120). Ms Dixon submitted that the best guide to sentencing practice at the time you committed the offences is reflected in the sentence imposed in the County Court in 1982, when you received a five year good behaviour bond in respect of the matters to which I have just previously referred, as these were the matters closest in time to the offending for which I now sentence you-that this should be a guide as to the sentences I impose in relation to the offending before me. While I have borne this sentence in mind, I must say I am not overly assisted by it in terms of reflecting on sentencing practice at that time. It is one sentence and the circumstances of that offending are not these. In any event, with the greatest respect to the learned sentencing judge who imposed that penalty, on the basis of what I know about that offending, I regard the sentence as more than merciful, even allowing for the fact that sentences for such matters would have been lesser then, and bearing in mind the applicable maximum penalties.

37      When one looks at sentences which have been reviewed in the Court of Appeal for historical offending of the type that you have committed, terms of immediate imprisonment have been deemed appropriate. Examples of these are R v Murray [2011] VSCA 232, Rv Stalio [2012] VSCA 120 and R v TRG [2011] VSCA 337. While none of these cases are on all fours with your offending, and some may be said to have more serious offences included, they do demonstrate that offences which are of the kind that you committed, notwithstanding that they were committed decades ago, still attract immediate gaol terms rather than good behaviour bonds. This is so even though the offender is elderly, has serious health issues and has good prospects of rehabilitation. However, it is difficult to glean sufficient information in respect of sentences imposed at the time that you committed the offences before me, in order to properly determine sentencing practice at that time. Therefore, in the interests of equal justice, I have factored in that at that time sentences would have been lesser than for similar offending now and of course, I have borne in mind the maximum penalties for each of the offences.

38      I take into account your pleas of guilty and the stage at which they were entered.  This occurred after I refused to give a sentencing indication at a time when the matter was listed for trial.  Therefore, the stage at which the pleas were entered was late, and at a time when the complainants were expecting to give evidence at trial.  However, they were spared the trauma and time of giving evidence at trial and the community has been spared the time and expense of a trial.  As you ran a contested committal hearing, no such savings were made in that respect.  Each of the complainants was cross-examined and it seems to me that their credibility was challenged, in that collusion was explored.  You are not to be punished for running a committal hearing and I do not do so.  You are entitled to proceed as you have.  However, the discount that you receive in such circumstances will not be as great as it would have been had you pleaded guilty at an earlier stage.  It also does not signify much in the way of remorse, although I understand that this step was taken in circumstances where you professed to have no memory of the offences.  I have factored in that there were additional charges on the trial indictment and that you faced further charges at the committal stage.  You told psychologist, Mr Keith Smith, that if you did what the victims said that you did then it was a very bad thing.  You went on to say that had you had remorse on the basis that the victims’ statements were true.  Your expressions of remorse are somewhat qualified, Mr Bikendi, and are impacted by my findings in respect of your professed lack of memory.  But I accept that you have now taken responsibility for your offending in that you have pleaded guilty.  And as I say, I have taken into account the stage at which those pleas were entered.

39      

Your counsel submitted that the pleas of guilty are especially valuable in facilitating justice in circumstances where Ms Dixon submitted that an application to permanently stay proceedings was not without merit, and that there were some material flaws in the Crown case, which deprived it of strength.  In the absence of these matters being tested or concluded upon in any way, I am unable to speculate about them in such a way that gives added weight to your pleas of guilty. But I say this:  The report from Dr Walton, to which I shall refer in a moment, and which the learned prosecutor tendered at the plea hearing on the question of your memory, would not have advanced defence’s position in any stay application.  The report was obtained by your representatives because of a fitness to plead concern that the defence had, due to your professed problems with long-term memory.  In the report dated 17 September 2013, referring to an examination of you conducted on

2 September 2013, Dr Walton said:

"While I could not definitely exclude a diagnosis of some sort of dementia, at worst that remains at a relatively mild stage given Mr Bikendi’s continuing ability to exaggerate his problems and simulate disability, albeit in a relatively crude fashion such that his attempts to deceive are fairly readily discernible.  However, precisely what level of genuine neuropsychiatric impairment this man may be suffering from is difficult to determine with accuracy at this point".

A little later on, he continued:

"It is consistent with Mr Bikendi having a degree of awareness about his past offending in excess of that which he is prepared to admit, that he is afflicted by depression partly in response to those disagreeable memories, and it is not at all improbable that his multiple physical illnesses also contribute to his depression."

40      

I have factored in that, had police actually taken action at the time

Ms McM initially approached them, there was a prospect that at least her matters would have been finalised much earlier on, and perhaps have married up with some other matters you were facing at that time.  On the other hand, the fact that matters were not pursued earlier on by the police, or any of the victims, has enabled you to live the healthiest years of your life in the community, when not in gaol, apparently impervious to the suffering you had caused the victims in this case.  Also, if Ms McM’s matters had proceeded at that time, it is unclear as to what stance you would have taken in respect of these, and what the outcome for her would have been, when the law governing sexual offences was less advanced than it is now.

41       Ms Dixon, submitted that I ought factor in delay from the time you were charged to the finalisation of this matter, which is in the order of two years; that you had endured the anxiety of having these matters hanging over your head in that time.  I make minimal allowance for this in circumstances where the police acted in a timely fashion once all three complainants came forward, and the delay has largely been caused by you and your legal team.  This is no criticism of them or you, but in circumstances where the investigation and court proceedings occurred in a fairly timely fashion, it was always open to you to bring matters to an end earlier than this.  Again, I bear in mind that you profess to have problems with your memory which your legal team most properly explored.  Unfortunately, that meant that the matter which was listed as a trial in September last year had to be adjourned to March this year.  Your counsel conceded that the delay from charge to now must have also taken quite a toll on the victims.

42      As to your professed lack of memory of these events, I have some difficulty in accepting that you genuinely do not recall at least something of the events or the victims in respect of the offences before me.  There does not appear to be a medical or psychiatric basis for your lack of recollection, and in fact, there are indications to the opposite effect, apart from your self-report.  When interviewed by police on 6 March 2012 you said that apart from some flashbacks you could not recall the past since you’d had a stroke.  And I will return to your record of interview again in a moment.

43      In her report of 13 June 2012, your treating geriatrician, Dr Veera Makkda, said that your long term memory was preserved and she did not believe that your inability to recall an incident that happened 45 years ago is likely to be a result of your cognitive and memory deterioration, which was occurring at that time.  These issues appeared to impact on your short-term memory.  On the occasion that you saw Dr Makkda, you said that your short-term memory had been declining for over ten to 15 years, and had become worse over the past 12 months because of  "a couple of TIA’s".  As I understand  the nomenclature, a 'TIA’ is a mini stroke.  You said that you believed that your past memory was not very well preserved.  You said that you had suffered from depression in the past but denied being depressed or anxious as at that time.  I note that you saw Dr Makkda at a time after the record of interview where you said that you had no memory of the alleged events giving rise to the charges.

44      You told police, instructed your counsel and have told Dr Lester Walton, that you were abused as a child, although you described a different abuser to the police than you did to Dr Walton -  one was an old man at the school and the other was an uncle.  Your account as to the sexual incidents at school were quite detailed.  When I queried Ms Dixon as to how you were able to retain these memories but not the events giving rise to the offences before me, she was unable to enlighten me, until you provided instructions in a break that you had been reminded of this chapter in your life by your wife.  You said that you had told her of these things in the 80’s and she had raised these matters with you since.  I must say that I have some problems with this explanation.  It is not the explanation you gave to Dr Walton when he asked you a similar question.  You told Dr Walton that you can remember significant happenings, insisting that you could not recall any previous offending.  You were not prepared to concede that you had forgotten the offending.

45       I arranged for my associate to contact your counsel and defence via email to see if they had any objection to me looking at your record of interview in more detail, as I considered this relevant to the question of your memory of the offending in this case. As I have said, just before sentencing today, neither counsel objected to this course.  Your wife was with you when the record of interview was conducted, which is rather unusual, as was her designation in the transcript as an independent third person.  She interjected at times throughout the record of interview in an apparent bid to assist your recall of things, but your account of your own abuse was given unaided, saying that you did recall an incident, or incidents, in a classroom at school and that perhaps this is why you recalled your school.  You also proffered some other details from the past, including about Walhalla, about your parents and family home.  Interestingly, when asked by police about your connection to Walhalla, you said "Nothing at all, other than I used to….  I suppose I must have been there cos I can remember it".  However, you maintained having no memory of the victims or having stayed with them or staying in Walhalla.

46      In the end, whether it be relied on as a mitigating feature in itself, or as part of a cluster of health issues, or on the question of delay, or merit on a stay application, on the basis of all of the material before me, I am not satisfied on the balance of probabilities that you genuinely have no memory of any matters relevant to your offending for which I now sentence you.  I have factored this in when considering the question of remorse, insight and the weight I need give to specific deterrence.  I should record that Ms Dixon asked via email to my Associate, whether in looking at the record of interview I was proposing to make an adverse finding in relation to you, and through my Associate I indicated the view that I have just enunciated and provided the opportunity for her to make further submissions.  Ms Dixon declined to do so, which she confirmed again today.

47      Mr Bikendi, I accept that you are in poor health and are suffering from a major depressive disorder.  Despite medical treatment you report no improvement in your depressed state.  Your many ailments are documented in the exhibits which have been tendered on the plea hearing.  In a summary form, they have been listed in a letter provided by your local medical clinic, which is Exhibit 2.  The conditions from which you have suffered, or currently suffer, include diabetes mellitus type 2, osteoarthritis, gout, Hepatitis C, chronic renal impairment, unstable angina, vascular dementia, and you have suffered respiratory failure. You may also be in the early stages of Alzheimer's disease, which, as I understand it, impacts upon the short term memory.  The only documentation in respect of any stroke, that you told police had wiped out your long term memory, is set out in reports from Dr Nguyen, cardiologist, who records ‘TIAs’, mini strokes, as part of a history given him.  You were referred to him for cardiac evaluation in April 2012.  The ‘TIAs’ are recorded as part of the history obtained and are recorded as having occurred in 2002. 

48      You are only able to sleep with the assistance of an oxygen mask, and when the matter was listed for trial, your general practitioner indicated you were unfit for trial because of your health problems, that you would need access to oxygen throughout, as well as frequent toilet breaks because of your incontinence. Fortunately, you appear to have not needed the assistance of oxygen during the course of the plea hearing, unless you used this during the break in proceedings.  At one stage I was told that you have a leaking aorta, but this submission was withdrawn, being based on apparent confusion that you and your wife had concerning a doctor telling you that the chemical Troponin was leaking into your blood at higher than normal levels.  I was told that you also suffer from sleep apnoea.  You have attended court on each occasion in a wheelchair ,and you obviously have a difficulty in terms of your level of fitness and mobility.  

49      You are taking medication for a number of documented ailments. In a report from your doctor, Dr Milan, dated 29 April 2014, he said that despite intervention, you had deranged blood sugar levels which may put you at risk in terms of your coronary circulation.  An ECG recently performed show that you have features of severe cardiac strain and chronic cardiac ischemia, as well as raised Troponin.  He said that you are on maximal medical management and are not a candidate for surgical intervention.  He said that a colleague assessed you as having severe stress levels and extremely severe anxiety and depressive levels.  Ms Dixon again stressed your health problems this morning, relaying further information from your latest cardiac specialist.  I have acted on the basis of this information and on the basis of illnesses and symptoms which are documented by medical practitioners, or psychologists and other experts, rather than conveyed by you.  It seems to me that you have exaggerated the impact of mini strokes which you say you suffered in 2002.  I allow for the fact that your documented medical difficulties and psychological difficulties- in particular, the medical difficulties which are most severe, as well as your lack of mobility, and state of mental health will make time in custody more difficult for you than for someone without these conditions.

50      I take into account your background.  You are now 70-years-old.  As I have already alluded to, you describe having been sexually assaulted as a child, albeit that you nominate a different offender and context to the police than you do to Dr Walton.  Nothing is noted by Keith Smith, psychologist, in his report in this regard, which is somewhat surprising, although it may be that the mention of this in Mr Walton’s report was ‘taken as read’ for Mr Smith’s purposes.  However, I do take into account that you were sexually assaulted as a child, as part of your background.

51      You have a solid work history, working in full-time employment as a truck driver, a boiler maker and at one stage, as a drug and alcohol counsellor.  I was told that you completed Year 12 and have achieved a social science degree.  You live with your wife, son, daughter in law and grandson in South Australia.  You were married in 1981 and have a son from that relationship.  You offended against two of your step-children who have written references in support of you.  It would appear that notwithstanding that you committed offences against them, their mother, your wife, has taken you back in and receives a carer’s allowance to look after you.  She also speaks highly of you.  I must say that I have found these votes of support rather difficult to factor in, in all of the circumstances.  It seems to me that there was something of an unpalatable flavour to you returning to the household of children you had abused, with their mother’s blessing.  Whilst it might be that these victims have apparently been able to move on and your wife has been able to forgive you, it must not be assumed or suggested that this is what the F victims should have done.  There was a disturbing tenor to the character references which was suggestive of this approach. Insofar as there was, I reject the notion out of hand; so I do hope that the support that you can look to is one that recognises the dreadful nature of your offending and its impact on the victims in this case.  On the basis that this will be the case, I take into account your family support as a matter which goes positively to your prospects of rehabilitation.

52      Taking all matters into account, including your pleas of guilty, the fact that it has been a lengthy period since you committed an offence; on the basis of your documented medical conditions, your fairly advanced age and your family support, I find that your prospects of rehabilitation are fairly good.  In making this finding I have factored in my findings on the question of remorse and your memory.  I place some weight on specific deterrence and protection of the community.  Your documented physical incapacity will make further offending rather difficult, even though I am rather concerned about your subsequent offending and approach to the matters before me.

53      Your counsel submitted that a wholly suspended sentence was appropriate in all of the circumstances, and in light of sentencing practice as at the time you offended. The Crown submitted that an immediate custodial sentence was warranted.  I have been referred to a number of authorities and to an extract from the sentencing manual, and I have considered these.  If you were a younger and healthier man who had committed these offences in more recent times, there would be no doubt that you would be facing a lengthy gaol term.  I have come to the conclusion that after applying appropriate weight to all relevant sentencing considerations, the only appropriate sentence in your case is one of immediate imprisonment.  However, in view of the matters to which I have previously referred which are to count in your favour, including the maximum penalty for these offences, your advanced years and your poor physical and mental health, the gaol term will not be as lengthy as would otherwise be the case.  As you have previously been sentenced to periods of imprisonment for relevant sexual offences, you will be sentenced as a serious sexual offender from Charge 1 and this will be entered in the records.  Therefore, there is a presumption of cumulation after Charge 1.  Even if there were no presumption of cumulation invoked by the serious offender provisions, I would have made directions for cumulation anyway to reflect the different occasions of offending and the different victims involved. However, there is no need to impose a disproportionate sentence in order to protect the community.  I shall now proceed to sentence. I do not require you to stand up:

54      You are convicted of all charges.

55      First of all, I make ancillary orders:

A         By reason of your convictions for these offences, you are to be recorded as a registrable offender for life.  You must report your personal details to the Chief Commissioner of Police annually for the rest of your life.  You must first report these details within seven days after your release from custody.  Details in writing of these reporting conditions will be served upon you now by my Associate.  I will ask your counsel, Ms Dixon, to assist you with an acknowledgement of that notice and have you sign it. 

Thank you.

56      B        Secondly, I make an order for a forensic sample to be taken by way of a swab sample of saliva from the mouth.  I make the order because of the seriousness of the offences, because it is not opposed, and because it is in the public interest to make such an order.  Notwithstanding your present lack of opposition to the order, I must tell you that if you do not cooperate at the time the sample is to be taken, then the authorised officer may use reasonable force to conduct the procedure.

57      In respect of the charges on the indictment, you are sentenced to the following periods of imprisonment:

58      Charge 1       12 months.  This will be the base sentence;

59      Charge 2       10 months;

60      Charge 3       4 months;

61      Charge 4       10 months;

62      Charge 5       10 months;

63      I direct that four months from the sentences on Charges 2, 4 and 5, and one month from the sentence on Charge 3, be served cumulatively with each other and with the sentence on Charge 1, giving a total effective sentence of two years, one month.  I direct that you serve 12 months imprisonment before becoming eligible for parole.

64      If not for your pleas of guilty, I would have sentenced you to a total effective sentence of three years, six months imprisonment with a non-parole period of two years imprisonment.

65      Is there anything arising from that, counsel?

66      COUNSEL:  No, Your Honour.

67      

HER HONOUR:  All right.  Thank you.  Yes, if you could please remove

Mr Bikendi.  Ms Dixon, I'll make it very clear by making direct communications through my Associate with prisons, that there are particular health concerns and needs that Mr Bikendi has.

68      MS DIXON:  Thank you very much.

69      HER HONOUR:  Does he have a list of his medication, Ms Dixon? 

70      MS DIXON:  Yes he does.

71      

HER HONOUR:  We'll make sure that's all communicated urgently

through - - -

72      MS DIXON:  Thank you, Your Honour, I appreciate that. 

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