DPP v Monash (a pseudonym)
[2019] VCC 1877
•15 November 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBPOURNE CRIMINAL JURISDICTION | Revised Not Restricted Suitable for Publication |
SEXUAL OFFENCES LIST
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DARCY MONASH (a pseudonym) |
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| JUDGE: | HIS HONOUR JUDGE HIGHAM |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 15 July 2019, 6 September 2019, 29 October 2019 |
| DATE OF SENTENCE: | 15 November 2019 |
| CASE MAY BE CITED AS: | DPP v Monash (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 1877 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – indecent assault – indecent act with a child under 16 – procure sexual penetration by threat
Legislation Cited: Crimes Act 1958 (Vic), ss 44(1), 47(1), 54(1)
Cases Cited:
Sentence:Total effective sentence of 3 years’ imprisonment with 9 months of the total effective sentence suspended for a period of 9 months.
Section 6AAA declaration: 4 years and 10 months’ imprisonment with a non-parole period of 5 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr N. Goodenough | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr J. Lowy | Docherty Legal |
HIS HONOUR:
1Darcy Monash[1], on indictment H13213353, you have pleaded guilty to seven charges of indecent assault, one charge of procure sexual penetration by threat and one charge of indecent act with or in the presence of a child under 16. You have also pleaded guilty on a separate indictment H13213353A.2, to three charges of an indecent act with a child under the age of 16 years. The maximum penalty for indecent assault and for procuring sexual penetration by threat is five years' imprisonment. The maximum penalty for indecent act with a child under 16 is 10 years' imprisonment.
[1] Darcy Monash is a pseudonym
2Tendered on the plea as Exhibit 1 was a summary of the prosecution opening dated 30 July 2019. I annex a copy of that document to these sentencing reasons. There are four separate victims of your offending and I shall deal with the circumstances of your offending by reference to the two separate indictments.
Indictment H13213353
3The victim in Charges 1-3 on this indictment was your biological cousin, Alexandra Ruth[2], who was seven months younger than you. You were born on 5 September 1970 and she was born on 2 April 1971. You attended your local school together in Year 8 and 9.
[2] Alexandra Ruth is a pseudonym
4On a date between 1 January 1983 and 31 December 1984, you both ‘wagged’ school together at recess to play on your Atari computer game at your home in Preston. Alexandra sat on the couch playing on the Atari. You came and sat beside her on the couch and began massaging her shoulders which made her feel uncomfortable. You then moved off the couch and sat with one knee either side of Alexandra's hips. She felt your hands move down her back towards her waist moving towards the front, touching her vagina over her underwear. Alexandra grabbed your hand and moved it away, stood up, and walked to the lounge area. She told you that what you were doing was wrong and you should not be doing it.
5You then had a discussion about your family members and Alexandra told you that she thought your step sister Sofia Atkinson[3], was being interfered with by your Uncle David[4]. Alexandra told you not to do anything to Sofia. You became angry and said that you hated Sofia. You then moved to sit on the couch next to Alexandra with your left leg touching her right leg and kissed her with an open mouth. Alexandra initially kissed you back so you would not become angry, then turned her head away wanting you to stop. You instead kissed her neck. You then pushed her onto her back on the couch, lay on top of her. You slid off the couch onto your knees and removed her underwear. You moved her legs apart and moved your head towards her vagina and moved your tongue over it without penetrating it. Alexandra laid still until she said she needed to go to the bathroom. She grabbed her underwear, ran to the bathroom to dress and then left. This offending underpins Charge 1.
[3] Sofia Atkinson is a pseudonym
[4] David is a pseudonym
6A few months later during school holidays, Alexandra was at your house with you and your sister Sofia. Sofia and you had the same mother. Alexandra overheard Sofia saying to you something like, 'Don't touch me Darcy' and Alexandra went to Sofia's bedroom and pushed you away saying, 'Leave her the fuck alone.' About two or three weeks after the school holidays, Alexandra again wagged school with you, going to your house in Preston. She sat down on your couch for a cigarette and coffee, told you that she hoped you were not doing anything to Sofia and you said, 'I won't touch Sofia if we just did some stuff today.' Alexandra said, 'I don't know,' but was worried about what could happen to Sofia if she didn't do stuff. You moved closer to her and tried to kiss her, but she turned her head away. You stood up and took your pants off. You held your penis in your hand and put the tip of it against her lip. Alexandra performed oral sex upon you as she believed that this was the stuff that you wanted her to perform, so that nothing would happen to Sofia. Alexandra felt your penis go erect in her mouth, she gagged because of the smell, pulled away maybe after a minute. She said that she did not want to do it and you replied by saying that, 'It wouldn't take long.' This offending underpins Charge 2, procure sexual penetration by threat.
7You then asked Alexandra to take her pants off and to lie on the couch. She complied. She felt your penis rubbing against her vagina and angled so it moved between the cheeks of her bottom and the outside of her vagina. After two or three thrusts you stopped and got up. Alexandra noticed that your penis was wet. She put on her underwear and pants and went to the bathroom. She noticed what she thought was your ejaculate on her inner thighs, pubic hair and the entrance to her vagina. This offending underpins Charge 3, indecent assault. You were between the ages of 12 and 14 at the time of this offending and Alexandra was between the ages of 11 and 13.
8Your victim in Charges 4-6, was your sister Sofia. Your offending was committed against her when she was aged between 10 and 12 and you were aged between 13 and 16. On a date between 1 January 1984 and 31 December 1986, Sofia was at home at Preston with you playing a game called 'What's the time Mr Wolf.' The game involved you sneaking up behind Sofia and grabbing an object between her legs, in order to win the game. You snuck up behind Sofia, but instead of grabbing the object, you put your hands down the front of her pants and rubbed her vagina on the outside of her underpants. This offending underpins Charge 4.
9On another occasion during this period, Sofia was at home in the backyard lying undressed on her back. You kissed her breasts and vagina as well as other areas of her body. This underpins Charge 5, indecent assault. On another occasion between 1 January 1986 and 31 December 1986, Sofia was at home with you in Preston. Sofia was lying on the floor on her back. You lay on top of her and pinned her down whilst you put your hand up her top and touched and squeezed her breast. This is Charge 6.
10The victim of Charges 7-9 is your other sister Alyssa Hermann[5]. You have the same mother, but again a different birth father. Between 1 January 1986 and 31 December 1986, you and Alyssa were at home in Preston with your mother Natalie[6]. Alyssa was about two years old and still wearing nappies. Natalie passed your bedroom and saw Alyssa lying on your bed without clothing. You were kneeling down over her and had your face on Alyssa's vagina, performing oral sex on your two year old sister. This is Charge 7, indecent assault. You were aged between 15 and 16.
[5] Alyssa Hermann is a pseudonym
[6] Natalie Monash is a pseudonym
11On a date between 25 June 1987 and 24 June 1989, you were at home in Preston with Alyssa when she was aged between three and four. She was wearing a dress and underpants lying next to you on the floor. You pulled Alyssa's underpants down to her ankles and licked her vagina. You stopped when she said she needed to go to the toilet. This offending underpins Charge 8, indecent assault. At the time of this offending you were aged between 16 and 18.
12On a date between 1 January 1997 and 31 December 1998, you, Alyssa and another sister Tayla[7] and your parents were driving to Bulla. You and your sisters were in the back of the car with you sitting in the middle. You kept reaching over and trying to grab Alyssa's breasts on the outside of her clothing, laughing. Alyssa told you to stop it and pushed your hands away. This underpins Charge 9, indecent act with a child under the age of 16. Alyssa was then aged between 12 and 14 and you were aged between 26 and 28.
[7] Tayla is a pseudonym
13This details all of the offending on indictment H13213353.
Indictment H13213353A.2
14The victim in respect of all three charges was your daughter Erin Burt[8], born on 16 September 1999. You were in a relationship with Erin's mother Charlotte[9] for about 16 years before it ended in about 2015 or 2016. Erin was Charlotte's daughter from a previous relationship. However she was raised by you and she regarded you as her father. Thus, although she was not your biological daughter, you were for all purposes her father and her parent. You and Charlotte, Erin's mother, have two further children together, Max[10] and Nicholas[11].
[8] Erin Burt is a pseudonym
[9] Charlotte is a pseudonym
[10] Max is a pseudonym
[11] Nicholas is a pseudonym
15Erin was told that you were not her biological father when she twelve years old, but this did not change your relationship. You were between the ages of 37 and 40 at the time of your offending against her. When Erin was aged between 9 and 11 years of age, she awoke to you massaging both of her breasts underneath her top with your hands. This occurred for about five minutes. This underpins Charge 1, indecent act with a child under 16. You then moved your hand inside Erin's underpants and pyjamas, using your finger to rub the outside of her vagina. This act also went for about five minutes and this is Charge 2, indecent act with a child under 16. You then alternated between touching her breasts and vagina a further six or eight times over a 20 minute period before leaving her bedroom. You said nothing to Erin during your offending. You did this on another five to six occasions, though of course you are not charged with and do not fall to be sentenced for those other acts.
16On a further occasion when Erin was aged between 9 and 11 she was sleeping on the lounge room floor with her cat. She awoke to find her hand on your erect penis. You had your hand on top of her hand and were moving it up and down your penis. This is Charge 3 on indictment H1323353A.2 indecent act with a child under 16. This incident occurred over about five minutes, whilst Erin pretended to be asleep. She eventually pulled her hand away and rolled over. At some point, after this, you and Erin were in the backyard together when Erin said to you, 'I wasn't asleep, I know what you did to me.' You responded, 'Well why didn't you tell me to stop then?
17Erin first complained to her Aunt in January 2016. You were interviewed by police on 31 July 2017. You denied any sexual offending against Erin, however you admitted offending against Sofia, Alyssa and Alexandra. When questioned about your offending with Alexandra, you said that, 'You two were forced by Uncle David to engage in sexual activities together.' You also described having mutually consensual intercourse with Alexandra as well as consensual sexual activities when skipping school, including touching, kissing and performing oral sex on each other. You entered an early plea to charges on the indictment H13213353.
18You were remanded in custody on 15 July 2019 on indictment H1323353A.2, which resulted in pleas of guilty shortly before the commencement of the trial. I also note that your daughter Erin was not cross-examined at committal. Tendered on the plea were victim impact statements from all four of your victims and from Erin's grandmother Abigail Burt[12] and they were respectively Exhibits 2, 3, 4, 5 and 6. Alexandra Ruth read her victim impact statement to the court at your plea hearing and she stated in part, 'The first time I had a flashback about the abuse I was in my late teens. Instead of getting help I turned to hard drugs and became homeless, sleeping on the streets in Canberra, a long way from my family. Later on it was alcohol and men, including prostitution…All my relationships with men have been abusive and controlling, because that is all I knew and you played a part of that in my adolescence.' Alexandra concluded her statement, 'Hopefully in time, with support from my dad, step mum, brothers, sisters and my children, I will be a normal happy, full of life woman, because you are not going to take any of my life away from me anymore. The first step was writing this statement. I feel proud of myself and to finally have closure.'
[12] Abigail Burt is a pseudonym
19Alyssa Hermann in her victim impact statement which was Exhibit 3, speaks of her daily struggles caused by your abuse of her, including the impact it has had on her trust in her marriage and her trust of males around her own children. When she made her statement in 2017, her anxiety worsened, impacting more greatly upon her life and causing her to leave work. She experienced changes in her mood, would get angry easily, she became irritable and had difficulty sleeping. She had bad dreams about you hurting her because she had spoken to the police about your abuse. She writes, 'I was an innocent little girl, he took that away from me…I am still discovering all the ways that the abuse and exploitation I suffered has hurt me, it has set my life on a wrong course and destroyed the normal childhood, teenage years, and adulthood that everyone deserves. The abuse has caused so many issues for me including, insecurity, lack of self-worth, anxiety, anger, just to name a few.’
20Sofia Atkinson in Exhibit 4, also wrote of her distrust of men and particularly of men around her own daughters. Sofia suffers with depression and anxiety and has previously attempted suicide. She blames herself for not talking about your offending against her earlier. Erin Burt in Exhibit 5 said that at the time that you offended against her she 'Felt alone. I didn't feel I could tell anyone, especially my family. I didn't want to be responsible for ruining the family and for my brothers losing their dad, or have my family disown me. I felt I had no choice but to pretend that nothing had happened.' She continues to be concerned for her relationship with her younger brothers, your sons. She writes, 'In the future, I'm worried my brothers will hate me for separating them from their dad. I love my brothers so much and I hope they understand. My youngest brother is seven at the moment and he thinks his dad is the best person ever. I just hope that when he gets older he doesn't blame me and reject me.' Abigail Burt expressed in her victim impact statement, Exhibit 6, that she felt that she had let down her granddaughter Erin by failing to protect her. Whilst such statements cannot be permitted to overwhelm the sentencing process, no one can be in any doubt of the lasting and traumatic impact of your offending.
21I turn now to your personal circumstances.
22You were born in Melbourne in 1970 and you are now 49 years of age. You were between the ages of 12 and 40 at the time of the offending. You were mainly raised by your maternal grandparents and aunts. You never had a close relationship with your mother and you remain estranged from her. You were subject to both physical and emotional abuse from your mother. You also witnessed family violence perpetrated against your mother by her partners, including witnessing your mother being raped by one of her partners.
23Of great significance, is that from the age of five to the age of 13, you were regularly subjected to sexual abuse by your Uncle David. This abuse included you being forced to participate in sexual acts with your younger female relatives for his sexual gratification. The prosecution accepted that Uncle David existed and, further, that he was a perpetrator of intra-familial abuse within your family unit, whilst making clear that you were not acting upon his directions during the course of the charged offending on that first indictment. Nonetheless, that is a significant and important concession on the part of the prosecution and plays a significant role in the exercise of my sentencing discretion.
24You attended a number of primary schools as your mother moved home frequently. You left school in 1986 after completing Year 10. After you left school you went to live with your father in Queensland, however that arrangement did not last long: you were ill-equipped to cope with your fractured relationship with your father and after three months you left and returned to Melbourne. You did not reconnect with your father until 2016, when you commenced contact via Facebook.
25You have no reported history of drug or alcohol abuse, nor any present issues with these substances. You have no physical health issues of significance. You have been prescribed anti-depressants since 2015.
26You commenced a relationship with Charlotte Burt, the mother of Erin in around 2000 and with whom you have two sons, Max and Nicholas. You separated from Ms Burt in 2015 before these allegations came to light.
27You are now married to Amy McKinnon[13], she remains supportive of you and was present in court at your plea hearing. I understand she visits you in custody weekly, sometimes accompanied by her adult children, two of whom are female. Upon your release, you are planning to reside with her.
[13] Amy McKinnon is a pseudonym
28You have worked hard and consistently since your early 20s and you were the primary income earner for both your family with Charlotte Burt and then with Ms McKinnon and her family. You have been primarily involved in bus driving. At the time of your remand, you had been working for Rockleigh Tours, working between 60-100 hours a week to ensure your family was provided for financially.
29You have one prior criminal matter. On 20 August 2008 you were convicted of recklessly causing injury to your daughter Erin and dealt with by means of a community-based order for 12 months. You smacked Erin by way of physical chastisement causing her bruising. I find this has little if any relevance to my sentencing exercise.
30You are presently remanded at Ravenhall Correctional Centre and you have been working full-time in the bakery. You see a psychologist twice a week and have undertaken a number of courses.
31Tendered on the plea was a psychologist report from Jeffrey Cummins, Forensic Psychologist dated 29 August 2019, Exhibit 8RB. You told Mr Cummins,
'He [Uncle David] forced me to do stuff with him and to my cousin [Alexandra Ruth] and to my stepsister [Alyssa] and to my stepsister [Sofia]…He forced me to touch his genitals and to have oral sex with him and he forced me to touch the girls and do things with them and he said if I didn't he’d sexually assault me. He forced me to touch their vaginas and forced them to sit on me and this kept happening until I was about 15 when I let it slip that he was doing this stuff with us. Before this he said if any of us spoke up, we'd get killed.'
32You also told Mr Cummins that you have 'Constant nightmares and flashbacks about what had happened to me when I was a kid.'
33You revealed to Jeffrey Cummins the details of a previous suicide attempt in 2016 after the Department of Health and Human Services had told you that you might not be able to continue seeing your sons. You told Mr Cummins that police found you lying on some train tracks and that you were made an involuntary patient at a facility in Bendigo after the suicide attempt. No materials were tendered on the plea concerning this involuntary admission. Mr Cummins diagnosed you with severe depression and with post-traumatic stress disorder.
34Mr Cummins administered both the static 99R and the RSVP, which are recognised actuarial assessment tools for assessing future risk of reoffending. On the static 99, you were assessed as being a low risk of sexual reoffending. In Mr Cummins' opinion this was unrealistically low. Mr Cummins' clinical judgment placed you as a moderate to high risk of committing further sexual offences against an under aged person, although he expected that you would benefit from offence specific treatment. Mr Cummins' conclusion was that you have been prematurely sexualised as a result of the sexual abuse you experienced as a child, and that you recognised that you urgently require offence specific treatment.
35You presented to him as being low average intelligence with an inadequate and dependent personality style, reflective of the absence of any maternal child bond. Mr Cummins' further reported that you were fearful of not being able to cope with imprisonment. Mr Cummins' stated that you currently presented as a very emotional person and that your mental health could deteriorate significantly and abruptly when you are sentenced.
36Your plea was adjourned to enable further information to be obtained. Exhibit 9 was a report from Dr Sally Chow, Consultant Psychiatrist with Forensicare dated 16 October 2019. Dr Chow noted that you had a previous diagnosis of PTSD from 2015 and that prescription medication largely resolved your symptoms. You disclosed to Dr Chow that you have attempted suicide six times since 2007. Dr Chow opined that,
'In the event of a custodial sentence, Mr Monash's personality traits and diagnosis of PTSD may cause him to be burdened more heavily than others by imprisonment. Mr Monash is emotionally fragile and presents with a degree of dependency in relationships…Since being in prison Mr Monash appears to be re-experiencing some of the symptoms of his PTSD.’
37Dr Chow was not trained in utilising assessment tools and so could not provide an opinion as to the current risk of re-offending. She noted Mr Cummins' clinical opinion of risk. She did however, conclude that,
'I am of the opinion that his offending behaviour appears to be a nexus of marital difficulties which led him to feel rejected by his wife and sexual attraction to his stepdaughter on the background of protracted sexualised behaviour and sexual abuse as a child. A diagnoses of paedophilia seems appropriate.'
38On your behalf, Mr Lowry recognised that the only appropriate disposition was an immediate term of imprisonment. However, he urged upon the court various matters in mitigation of your sentence.
39He submitted that you were aged between the ages of 12 and 18 at the time of all of the offending on indictment H13213353, save for Charge 9. Consequently on Charges 1-8, well established principles involving delay and youth were engaged. In addition there was room for reduction of your moral culpability for that offending due to your experience at the hands of an older male relative, and the manner in which you had been compelled to perform sexual acts within the family setting for the gratification of that male relative. Indeed, he submitted that had you been dealt with at the time of the offending, you may not have received a custodial disposition.
40He accepted that your more recent offending against your daughter, militated against the full application of those principles. In respect of the charges on indictment H13213353A.2, where your daughter Erin was the victim, you were of course an adult and held a position of trust as her father. Mr Lowy urged upon me your plea of guilty, bringing with it both the utilitarian value of saving to the community the time and cost of a trial, but also saving your victims from the trauma of giving evidence against a close family member. In this regard your plea was of real value. It was also indicative, he submitted, of your genuine remorse. That your remorse was genuinely felt was confirmed by the report of Mr Cummins. Mr Lowy submitted that the continued family support which you still enjoy was a protective factor which bode well for your rehabilitation.
41He accepted that you were a moderate to high risk of further sexual offending without treatment, but submitted that your recognition of the need for and your willingness to engage in such treatment would reduce that risk. He submitted that principles five and six of the well-known case of Verdins were engaged, a submission that I accept and which was not challenged by the prosecution. His ultimate submission was that having regard to your upbringing and the arguably unique features of the offending on indictment H13213353, a partially suspended sentence could meet all relevant sentencing purposes.
42Mr Goodenough, learned counsel for the prosecution, submitted that this was serious offending which in total occurred over a period of three decades. He accepted that your youth was an important factor in my sentencing discretion on indictment H13213353. However he rightly submitted that your offending against your daughter, Erin, constituted a gross breach of trust and as such, brought sentencing principles of general and specific deterrence, denunciation, just punishment and protection of the community to the fore in the sentencing exercise. He reminded me of the serious offender provisions of the Sentencing Act, however he did not seek a longer than commensurate sentence. Upon express instructions from the Director, he conceded that a partially suspended sentence was in range.
43Mr Monash, offending against children will always be viewed by the courts as serious offending. There has been a growing recognition by the courts of the lasting impact that such offending has upon children and how it can often lead to lives that are not fully lived. Children who have been sexually offended against have their innocence and their sense of self stolen from them. They blame themselves for acts committed against them by adults and for which they are completely without blame. They struggle to engage in healthy relationships. They struggle to find their place in the world. Crimes against children are crimes against our common future and against our common humanity. The courts have said time and time again that they will do everything within their power to protect their children.
44I accept that when you offended against your sisters and your cousin, you were for the most part, still a child. I accept that you yourself have been subject to the abuse and to the depraved and corrupting desires of your Uncle. This was clearly background and gave context to that earlier offending. At his direction you as a child took part in sexual acts with other family members. You were thus denied appropriate social and sexual boundaries and indeed were corrupted by him. You then offended against your cousins and your sisters in your own right. The offending against Alyssa, is of particular concern and gravity in my view, given her young age. It is beyond my understanding how your mother could witness the offending and not seek some intervention for you. Your moral culpability is in my view, reduced to a significant extent in relation to that offending, by virtue of the childhood to which you have been subjected.
45However and sadly for you and for your daughter Erin, your offending did not end there. The offending against your daughter Erin was serious indeed. You were her parent and she was aged between 9 and 11 at the time of your offending. She had a right to look to you for guidance, parental care, love and security. You offended against her in her own home and in that home she had a right to feel safe and secure. Instead she was subjected to your sexual approaches when in bed and asleep, or asleep on the couch in the lounge. The intimate and personal spaces of her home, became the place where you preyed upon her for the purpose of your own sexual gratification. It is almost trite to describe your offending as a gross breach of trust. Your acts constituted a fundamental abuse of parental authority. Your child became for you a mere object to be used for your sexual gratification and in that consists the true gravamen of your betrayal of her. It also demonstrates your entrenched paedophilic desires.
46The sentencing process is not about revenge. It is not about retribution. I am acutely aware that the sentencing process cannot give back to your victims that which they feel has been taken from them. In sentencing you, I must have regard to a range of different factors. I must give effect to the principle of general deterrence, that is to deter others from behaving as you did, and I must consider specific deterrence, that is deterring you from any repeat of such offending. I must consider the need to protect the community from you and I must express the community's denunciation of your conduct. I must take into account the effect of your crimes upon your victims. I must have regard to the statutory maximum penalties to the offences to which you have pleaded guilty. I must have regard to the current sentencing practices and to sentencing practices at the time of your offending in so far as they can be ascertained. In short, I must try to balance your personal circumstances with the circumstances of your offending.
47I am required by law to pass no longer a sentence than is necessary. However, upon being sentenced to a term of imprisonment on any two charges, I am required to give priority to the protection of the community on all subsequent charges. Ordinarily, that means that I would be required to impose a sentence that is cumulative upon the other sentences you are already serving. I have not done so in your case. I believe that the orders I make provide sufficient protection to the community at large. I have moderated the orders for cumulation that I would otherwise have made, having particular regard to the principle of totality.
48I have had regard to all of the matters urged upon me by your counsel Mr Lowy. For the avoidance of doubt, I have had regard to your plea of guilty, to your willingness to engage in treatment, to your remorse, which I do find to be genuine, to the family support that is available to you, to the fact that prison will be more burdensome for you, to the fact that prison may present a serious risk of an adverse impact upon your mental health, to your youth at the time of most of the offending on indictment H13213353 and to the principle of totality.
49However, the objective gravity of the offending is such that it can only be met by an immediate term of imprisonment. I have considered long and hard the submissions made by your counsel as to the availability of a partially suspended sentence and the concession made by Mr Goodenough on behalf of the Director. After that long reflection, I have concluded that I compose a total term of imprisonment that does enable part of it to be suspended.
50On indictment H13211353, you are sentenced as follows:-
51On Charge 1 indecent assault: you are convicted and sentenced to a term of imprisonment of four (4) months'.
52On Charge 2 procure sexual penetration by threat: you are convicted and sentenced to a term of imprisonment of four (4) months'.
53On Charge 3 indecent assault: convicted and sentenced to a terms of imprisonment of four (4) months'.
54On Charge 4 indecent assault: you are convicted and sentenced to a term of imprisonment of two (2) months'.
55On Charge 5 indecent assault: you are convicted and sentenced to a term of imprisonment of two (2) months'.
56On Charge 6 indecent assault: you are convicted and sentenced to a term of imprisonment of one (1) month.
57On Charge 7 indecent assault: you are convicted and sentenced to a term of imprisonment of eight (8) months'.
58On Charge 8 indecent act with a child under 16: you are convicted and sentenced to a term of imprisonment of six (6) months'.
59On Charge 9 indecent assault: you are convicted and sentenced to a term of imprisonment of one (1) month.
60I order that two (2) months of the sentence on Charge 2 and one (1) month of the sentence on Charge 5 run cumulative to each other and cumulative to the sentence on Charge 7. This makes the total effective sentence of indictment H13213353 of ten (10) months.
61On indictment H13213353A.2, you are sentenced as follows:-
62On Charge 1 indecent act with a child under 16: you are convicted and sentenced to a term of imprisonment of sixteen (16) months'.
63On Charge 2 indecent act with a child under 16: you are convicted and sentenced to a term of imprisonment of two (2) years' and three (3) months'.
64On Charge 3 indecent act with a child under 16: you are convicted and sentenced to a term of imprisonment of twenty-two (22) months'.
65I order that five (5) months' of the sentence on Charge 3, run cumulative on Charge 2. This makes the total effective sentence on indictment H13213353A.2 of two (2) years' and eight (8) months'.
66I further order that four (4) months' of the total effective sentence on indictment H13213353 run cumulative to the total effective sentence on indictment H13213353A.2. This makes the total effective sentence on both indictments of a term of imprisonment of three (3) years' and I am directing that nine (9) months' of that total sentence on both indictments be suspended for a period of nine (9) months'. Mr Monash, this means that you have to serve a period of two (2) years' and three (3) months' imprisonment before you will be released.
67Pursuant to s.6AAA of the Sentencing Act (1991), had you not pleaded guilty you would have been sentenced to a total effective sentence on both indictments of four (4) years' and ten (10) months' with a non-parole period of three (3) years' and six (6) months'.
68Pursuant to s.18(4) I declare that you have served one-hundred-and-twenty-three (123) days of the sentence that I have passed upon you and I direct that this be entered into the records of the court.
69On Charges 3, 4, 5, 6, 7, 8, 9 on indictment H13213353 and all charges on indictment H13213353A.2 you are sentenced as a serious sexual offender and I direct that this be entered into the records of the court.
70Charge 9 on H13213353 and Charges 1-3 on indictment H13213353A.2 are all class two offences. This means that pursuant to the Sex Offenders Registration Act 2004, you are a registrable offender in relation to these convictions, you are subject to the reporting obligations under the Act for the remainder of your life.
71HIS HONOUR: In effect what that means, is that as you reach the end of your time of imprisonment, someone will come and explain to you that you need to go and report to your local police officer who is responsible for maintaining the register, and you have to give your name and address and most importantly all your online personas and identities. Mr Lowy will explain that to you in greater detail.
72Can I make very clear that those details are used by investigators as an investigative tool and it is intended to protect children. The courts view very seriously breaches of those reporting obligations and should you breach them you will be prosecuted and you will be sentenced to prison, can I make very clear Mr Monash.
73Now you're required to sign a document acknowledging that you received notice of your obligations. Mr McKenzie is going to print off a copy of the document and you can go with Mr McKenzie Mr Lowy. And whilst we're waiting for the technology to crank up, there was a s.464ZF application Mr Goodenough?
74MR GOODENOUGH: That's so, Your Honour.
75HIS HONOUR: Yes. I'm going to make that order. I will sign that in chambers. Mr Monash, I have made an order enabling police to take a forensic sample from you, essentially that just means a buccal swab. I am mandated to tell you that when officers come to take that sample from you, should you refuse to allow the sample to be taken, the police are entitled to use such force as necessary in order to take the sample.
76Mr Lowy, custody management issues. Now, he's on medication.
77MR LOWY: Yes Your Honour.
78HIS HONOUR: Has Mr Monash been receiving them since he's been in custody?
79MR LOWY: Yes. Your Honour, he is receiving them.
80HIS HONOUR: All right. And I'll say something about his
PTSD.81MR LOWY: I would be astounded if those matters aren't already on his custody management issues, but ‑ ‑ ‑
82HIS HONOUR: I just want to be sure that I can do what I can to ensure that he's best cared for within the custodial setting.
83HIS HONOUR: All right Mr Monash, I will say this. It's important that you should engage in the treatment that will be offered to you in the Corrections setting, because that is the best prospect for you to put the past behind you, in particular the corrupted childhood to which you, through no fault of your own, were exposed. All right, thank you Mr Monash and you can go with the Corrections officers, thank you officers.
84HIS HONOUR: And to those who are present, I have noted the dignity with which you have conducted yourself. The court is grateful for your dignity, at a time which is always very fraught with emotion. All right, thank you counsel I'll stand down.
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