DPP v Wylie (a pseudonym)
[2017] VCC 1086
•9 August 2017
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Indictment No. G12642973
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Max WYLIE (a pseudonym) |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 August 2017 | |
DATE OF SENTENCE: | 9 August 2017 | |
CASE MAY BE CITED AS: | DPP v Wylie (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1086 | |
REASONS FOR SENTENCE
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Catchwords: Indecent act and incest. Multiple complainants. Young victims. Incest victims; 2 years old and 5 years old. Produce child pornography. 2 charges of incest laid on representative basis.
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APPEARANCES: | Counsel | Solicitors |
For the Director | Mr Godleman | Office of Public Prosecutions |
| For the Accused | Ms Spowart and Ms McGrath | Victoria Legal Aid |
HIS HONOUR:
1 Max Wylie,[1] you have pleaded guilty to nine charges laid on the indictment that is filed before me, namely three charges of committing indecent acts with a child under 16, four charges of incest and two charges of producing child pornography. There are two summary offences to which you have also pleaded guilty. The agreed summary correctly details the various offence maximum penalties. The maximum penalty for incest is, as you have heard, 25 years' imprisonment. The indictment spells out the particular acts and whether the charge is laid as a specific offence or on a representative basis. There are two charges of incest that are laid on a representative basis. The agreed summary completes the picture and describes the conduct in detail and further details the basis of the charges. Where laid as a representative charge, the summary sets out the particular facts of the charged act and then the extent to which it is representative and describes the other occasion or occasions.
[1] A pseudonym
2 You are 31 years old and though you have a criminal history and you have been given some chances by Courts and not taken all of them, there are no matters of a similar nature in the past, so that prior record is really of no weight to my task. There are no subsequent matters either.
Facts
3
The detail of your offending is set out in Exhibit A, the written summary of prosecution opening dated 24 July 2017. Your counsel told me that this was an agreed statement of facts. In those circumstances, I see no need to fully
re-state the facts here as the summary is incorporated into my remarks. I will not stray beyond that agreed statement.
4 Your offending came to light when the last of the offending, that is the conduct the subject of Charges 8 and 9, was observed occurring in a tent set up in the backyard of the family home in September 2016. On that occasion, your five year old stepdaughter who was in the tent saw you sexually assault your own four year old daughter by placing your penis up against the younger girl’s face and mouth. The younger girl woke up and you told her to go back to sleep. You then moved on to the stepdaughter who by then was pretending to be asleep. You pulled her pants and underwear down and leant from behind and touched her buttocks with your exposed penis. She told you to stop. This act was observed by another of your stepchildren, an older boy, who went inside and reported it to your wife. She spoke to the five year old girl to try to establish what had happened. That girl begged her mother not to call the police as she did not want you to get into trouble and go to gaol, which highlights the levels of damage caused by this sort of conduct. Damage in the act, damage in the impact upon family stability and even fear in the mind of a totally innocent victim, that is fear of family breakdown. Your wife correctly ignored that plea and the police were contacted.
5 You were arrested and interviewed later that same day and whilst denying any knowledge of, or memory of the incidents occurring earlier that day, you disclosed some other events of which the police had no knowledge. Incidents involving the five year old girl. The video recorded evidence interviews (VARE) with the children had at that stage, of course, not been conducted and even once conducted they did not explicitly refer to those acts which you had volunteered. You were charged and released on bail but that release was some time later as you evidently had difficulties raising the surety.
6 Whatever may be said as to the worth of these voluntary admissions made by you, you had plainly not given the police a full account of your misconduct. You had denied in the interview the events from the night before and said that you could not imagine doing anything like that. At that stage of the interview you told the police that it had never happened before. Of course later in the same interview you described some events with the five year old girl. One was oral penetration of her mouth, the other her touching your penis. But you did not need to use your imagination as to other acts. You knew that you had sexually penetrated the five year old digitally and that you had penetrated the two year old on a number of occasions by penile/vaginal penetration as well as digitally on one occasion. You had committed these various acts and you had photographed them.
7 In November 2016, your wife had the misfortune to be accessing a back-up of your iPhone and she found these distressing and awful images. They depicted graphically, sexual acts being committed by a person identifiable (not by face) as you, upon the two year old and the five year old. Those images in fact found some of the other charges or some of the representative conduct embraced by other charges. They also, of course, found the child pornography charges on the indictment. The photos were not just of the sexual acts. There were others. At least one showed the face of the five year old as she had your penis in her mouth. There is a description of the child pornography in paragraphs 25-32 in the agreed summary.
8 I resist the urge to go into much further factual detail. It is plain that your offending was extremely serious. That is conceded. There is the representative nature of two of these charges on the indictment. There are the three separate victims, the fact of acts occurring in the presence of two children on the last occasion. There is the unprotected nature of the sexual penetration as is obvious from the photos, I am told. I should mention that no-one involved in the case thought there was any need for me to view the photographs and so I certainly did not.
9 For those charges not charged as incest, there is the obvious high level of breach of trust involved, but that concept is already embraced in the incest charges, so is not to be doubly counted. It is why incest is such a serious crime with such a high maximum term. Your acts of incest involved very young victims. Your youngest biological daughter, she was two years old at the time that you engaged in penile/vaginal penetration of her and saw fit to photograph it. That form of incest is laid on a representative basis of the three occasions of such conduct. You also digitally penetrated her. Your conduct beggars belief but it actually occurred.
10 I have not named the girls in these reasons nor your ex-wife. Your other biological child was four at the time of that act in the tent. She normally lived with her mother but was visiting on holidays at the time of the happening of the act the subject of Charge 8 on the indictment. The other child, as I say your stepdaughter, was five. I refer to the summary for a full statement of the agreed facts.
11 Now you did make admissions when interviewed, not to the conduct occurring that day in the tent but to the earlier conduct which the police were not aware of. You certainly were not seeking to defend your conduct but of course as your counsel concedes, whilst you did make some admissions, you omitted a great deal as well
12 The summary offences relate to your breaching a Family Violence order by engaging in the conduct described in the agreed summary which similarly breached a condition of your bail. Of course in that note written by you, you apologised for conduct directed at the five year old whilst remaining silent as to any misconduct directed at the other two girls.
13 You have been in custody continuously since 6 December 2016 though had spent a shorter portion in custody from 25 September 2016 until being bailed on 22 October. All up you have spent upwards of 270 days in prison, I believe it to be 274 days.
Victim impact
14 I turn to the impact statement that has been filed in this matter. It was prepared by your ex-wife, the mother of two of the children and stepmother of the third. It would I suppose be open to me to state that I take into account the impact of your crimes and say no more because, of course, I have read that impact statement since the day of the plea and I have in fact taken into account that impact statement of your ex-wife. However this case is not all about you. You have committed these very serious crimes upon these children. Children who are too young to speak of, or even truly even understand the impacts. The impact statement of your ex-wife was read aloud by the prosecutor. It made for difficult listening. It was a very sad and insightful account and it encapsulates why incest is such a serious and destructive crime. Your own mother echoes some of these same sentiments in her letter to the Court as, in fact, do you in your account to Dr Gee and in your own letter of apology. The impact here has been vast. You do not need me to tell you that. Your conduct has fragmented the family. It has damaged lives, the lives of those you claimed to love. That is the constant theme in the impact statement filed before me and it is entirely understandable. Your ex-wife describes the trauma of the forensic examination of the five year old girl, the humiliation and the pain of that and then the blood tests that followed. That was only the beginning and your ex-wife hopes that these memories can fade for her and her children. The later discovery of the images taken by you caused her world to further collapse. What awful images for a mother to find. Images of the man she loved abusing the children she thought you both loved. She speaks of the breach of trust, the deception and the selfishness of your conduct. Her belief in love and in trust has been annihilated. The family has been fragmented. A father and husband is now absent from the home. Broader extended family relationships have been strained or at least altered. The blended family she was so proud of and speaks of in the impact statement is no more. Your crimes have affected every domain of her life. She speaks of her observations of her daughter. The older girl is anxious and apprehensive now. She repeated prep. She wets her pants, she is not as trusting as she was, she is worried about things, including intruders. The little one who was but two, well about the best one can hope for is that she will have no memory of the events but who knows and these events in her life they cannot just be wished away. They happened and they happened to her. Does the mother tell her? How could she not as the other children have knowledge of the events, or at least some of them and also knowledge of the immediate consequences including your departure from the family home. As the littlest grows up she will presumably be asking questions about her father. Will she be told about you, about where you are and why you are there, that is, in prison. Who knows now how any of these things will pan out? Who knows how these things will reverberate into the future.
15 No doubt these children will not have anything resembling a full grasp of the way your crimes will impact upon them in the years ahead. How could they? There is just no doubt that the impact of these crimes will continue to be significant and will be felt for very many years to come. You concede as much.
16 I am not here to act emotionally or to be influenced by the obvious raw emotion in the impact statement. That is not my job. I guard against that approach and of course the impact of crimes is but one of a host of matters that a judge has to consider. But I do have to take into account the impact of your crimes and I do. I take into account the very significant impact of your crimes, a fact that you well recognise yourself.
Submissions In mitigation
17 Ms Spowart appeared with Ms McGrath and they raised a number of matters on the plea. It was a brief and sensibly pitched plea.
18 They placed before the court an excellent set of written submissions marked as Exhibit 1 though in the course of the plea they abandoned some aspects of the written outline including any suggestion that there were any Verdins type considerations at play here. Your counsel chiefly relied upon:
§ Your guilty plea and the very early stage of that plea;
§ The presence of some remorse;
§ Your level of co-operation with the police in providing some information they were not aware of which founded some of the charges in whole or in part;
§ The absence of any relevant past or subsequent offending;
§ They relied upon aspects of a report from Dr Gee and argued that you had some prospects of rehabilitation;
§ They also placed before me a letter from your mother and one from you as well as some certificates and course results showing the efforts that you are making in custody.
19 Now your Counsel conceded that this was very serious offending and that a significant prison term was obviously required.
Crown Submissions
20 Ms Goding, who appeared to prosecute on the day of the plea, was not really pressed into making lengthy submissions, for by the time she rose to her feet, your own counsel had made a number of concessions as to the many serious aspects of the case in what, as I say, was a realistic plea. The prosecutor questioned the extent of the remorse and made submissions as to the response profiles obtained by Dr Gee and Dr Gee’s statement as to the need for some caution given the potential for symptom exaggeration and self-deprecation. She agreed that you had made some disclosures to the police but not complete ones by any stretch of the imagination. Otherwise she made submissions as to the seriousness posed by the young age of the victims and the duration of the conduct. It was not isolated other than, of course, for your older daughter the subject of Charge 8. She argued that the period of ten months was a lengthy period when measured up against the life of a two or five year old. Each party accepted that the decision of Dalgleish was operative in this case.
Background
21 I turn only quite briefly to your personal background. I have no reason not to accept the personal family background that has been placed before me and I do accept it. It is contained in detail in the report of Dr Gee, Exhibit 2, as well as in your mother’s long letter, Exhibit 3. Ms Spowart took me to more of your background including your work history in the oral submissions that she placed before me. I see no reason to slavishly restate it all in these reasons which will be quite long enough already.
22 Very briefly, you are now 31 years of age. You have some criminal history but as I said earlier, it is of no real relevance to my task at all. You are the eldest of two children and your parents separated when you were four. You have a younger sister, and your parent’s separation, it would seem, was not easy. It rarely is. Your mother was a relief teacher and this required her to move and you with her and so if follows that you went to a number of schools and tended not to set down any roots or make strong friendships perhaps as a result of those moves. You were bullied and badly so it would seem at some points. You completed Year 10 and left school about half way through Year 11. You then worked in a number of relatively unskilled jobs. There is a sense of your having perhaps underachieved which comes through in your mother’s letter. I see no need to set out the various jobs. You married in October 2015.
23
Since being in custody you are doing well. You are completing such courses as are open to you. You are doing a horticultural course a couple of days a week and you also are working in custody. You are receiving visits and still enjoy the support of your family which is at it should be, whatever you have done, and they do support you. You are starting to confront the reality of your position. The missing of significant events is one such reality, of course.
Your grandmother who, as I understand it, until recently has been visiting you has gone into palliative care and will certainly die in circumstances where you will not be present. That is part of the reality of incarceration.
Guilty plea
24 I turn now then to the matters in mitigation. The first of those is your guilty plea. You have pleaded guilty and you have done that at the earliest stage. Earlier still you were co-operative with the police in that you made the significant admissions that found Charge 1 and part of Charge 2. I will come back to those admissions in one moment as they must be given weight independently of the guilty plea.
25 I accept that your plea of guilty must be met with a sizeable and appreciable discount. That is the law. There is a strong utilitarian value. It was entered at the earliest opportunity. It is very important that you have taken full legal responsibility for your offending and as early as you did.
26 Now the fact is, not everyone pleads guilty. Indeed very many do not and these sorts of cases with very young victims are sometimes difficult cases to prosecute. This was a powerful case obviously enough given the photographic evidence but this sort of case run as a trial can still be very harrowing indeed for the immediate victims and the broader family members who often are also witnesses, as they would have been here. Often enough, even in strong cases, people charged with child sex offences, they run the matter to trial, taking their chances before a jury. You have not done that. You have taken early and full legal responsibility for the crimes and I do sense that part of your motivation is to spare your victims any further ordeal.
27 As a result of your plea, the community has been spared the time, cost and the effort associated with a criminal trial up in this court or a committal in the court below. The fact is the strength of the case is irrelevant to the benefits I give you for your guilty plea. You have facilitated the course of justice by pleading guilty and at the earliest stage. That is significant in any case, but more so in this sort of case, one involving as I say, very young child victims. Your victims and other child witnesses have been spared the experience of being called and cross-examined in relation to this sort of matter. Your ex-wife has been spared the stress and worry of that exercise actually happening. It can be very stressful indeed. It can be both confusing and confronting for a child to have to relive the experiences in court under cross-examination and that is the position even with all the benefits of the alternative procedures now open to children with the use of their recorded statements (VARE) and then giving evidence at a special hearing. Your immediate victims, their brothers and your ex-wife have been spared all of that by your guilty plea and that is worth a lot.
28 I am going to pass a significantly lesser penalty because of these matters.
29
Additionally I do take into account the admissions that you made which found two of the charges. I have been referred to the Court of Appeal decision of Doran. Well that was a very different setting and your attitude obviously falls shy of the sort of attitude demonstrated by the offender in that case. You had been arrested. You were being interviewed as a result of observations made of your conduct in the tent. Your conduct had come to light, or at least some of it and the police had not yet at that point spoken to the children but were going to. They told you as much and you were being pressed by the police. You denied the conduct in the tent or at least any memory of it, conduct which you now admit by your plea. Undoubtedly you did provide some information that the police were unaware of. That conduct founds the first charge and part of the second of the charges and was not detailed explicitly by your victim in the subsequent VARE that was conducted a few days later. So I accept that the disclosure by you must be given real weight over and above your guilty plea. However you did not provide all of the evidence necessary to convict you of the majority of your crimes. Far from it.
Your counsel made submissions in writing speaking of the way in which this voluntary disclosure might be reflected (in paragraph 7 of her written outline) but she significantly departed from those written submissions and accepted in oral argument that you did not make a clean breast of it so your conduct did not deserve the full recognition of those principles. That case which I have referred, Doran's case suggests that this sort of detailed admission of matters not known to police can be demonstrative of sincere or genuine remorse, indicative of good rehabilitation prospects and lessen the need for specific deterrence. That is the way the written outline proceeded but of course it was conceded that the disclosures were not in any way complete and that those principles were not to be given their full weight here. Your counsel after all was making no suggestion of your having good prospects of rehabilitation. She suggested I should find the presence of some remorse and conceded that specific deterrence still had an obvious role to play here. Still I do give some separate weight to those admissions given that there was no other evidence in support of them.
Remorse
30
I turn now to the issue of remorse. Ordinarily a guilty plea is indicative of some remorse. That is not always the position. Your counsel relies on your early plea, your admissions to police including the provision of these unknown details, what you said to the police more generally in the interview, what you said to
Dr Gee in consultations with him, as well as what your mother says and what you say yourself in your own letter. Your counsel argues that the Court should find that there is some remorse present here. The Crown, whilst not doubting the presence of some, query the extent of it.
31 Some might think it an unusual thing to make a finding of remorse where you have embarked upon this serious conduct, with an obvious understanding at the time as to how serious it was both criminally and in terms of the likely impacts upon your children. Your counsel concedes there is also an aspect of being caught out at one point by your wife, put on notice and then continuing with the conduct. However, having reviewed all the materials, as I have in the days since the plea, including your various utterances to police, to Dr Gee, to your mother and to this Court, I am prepared to find that you do have at least some remorse for these serious crimes. I take your remorse into account in mitigation.
Dr Gee’s report
32
I take into account the report of Dr Gee. I told your counsel that I had previously raised my concerns with this expert about the length of his reports when he was called before me as a witness in another case. He certainly cannot be accused of skimping on detail though I query the utility of large slabs of the police summary finding their way into the document. It was a very lengthy report spanning something like 26 pages. Having read Dr Gee’s report, I told
Ms Spowart, your counsel, that I was not going to trawl my way through the report in an endeavour to find matters that might be relied upon in mitigation.
I requested your counsel to take me to those portions she was actually relying upon in a mitigatory manner. There was not much. She took me to those portions dealing with your description of the impact of the crimes (para 25 & 26), the risk of re-offence (para 46) and the portion of the report dealing with your fair to good prospects. (para 62). As to those prospects, your counsel recognised that they were expressed by Dr Gee as being conditional upon timely and appropriate intervention which may well not occur here given the dimensions of the prison sentence required in this case. Your counsel abandoned any suggestion that any of the principles from the case of Verdins v R applied in this case. The written submissions had flagged the application of the 5th and 6th of those principles. Ms Spowart, in her oral submissions disavowed that submission directly and explicitly and said there was no evidence to found that written submission.
33 I am prepared to act on the risk assessment in Dr Gee’s report. Dr Gee is after all an expert in these areas and suggests that you fall in the moderate-high risk of sexual re-offending. You are judged by him to fulfil the DSM-V criteria for the paedophilic disorder described by him. You had a deviant sexual interest but you also had an appreciation of the wrongfulness of your conduct.
34 You at least appear to display some insight into the wrongfulness of your conduct and the great damage caused by it. That is referred to in paragraphs 25 and 26 of the report and also in your own letter. Now Dr Gee advises that the results of the various tests conducted by him must be interpreted with some level of caution given the potential for symptom exaggeration here. However I must say I do not take your statements to Dr Gee or in your letter to the court as purely self-serving or some exercise of your merely providing that which you believe a Court will want to hear. I have seen enough people who sit in your position down in the dock who actually seek to deny the obvious sexual urges or interest that lies at the foundation of the crimes before the court to which they have pleaded. You at least do not do that. You do not appear to be resistant to treatment at this point. If you maintain your current attitude one hopes that you will receive treatment which may assist you and may also serve to protect the community in the future. You seemingly indicate to your mother that you need help. In your own letter you speak of the desire to learn why you have committed these crimes and how not to re-offend in the future.
35 You must not abandon that attitude. You will need to maintain this attitude in the many years that lie ahead and in so doing maximising your chances and minimising the risks that you otherwise clearly pose, presently.
Rehabilitation
36 Your counsel argued that I should find that you have some prospects of rehabilitation. She argued that you had no relevant prior criminal history, that you had some remorse, that you had pleaded guilty at the earliest opportunity and were expressing a level of insight as could be seen from Dr Gee’s report, your mother’s letter as well as your own letter and the police interview.
37 You are currently amenable to treatment. You do not appear to me to in any way revel in the offending that you have committed. Some do. At this stage, you make no effort to justify it or lay off any blame to others as enough paedophiles seem to do.
38 You face a very lengthy term of imprisonment stretching many years into the future which will obviously play some role in deterring you. You will likely be required to undertake a sex offenders program, but from present indications at least, you would actively engage in such a course of treatment and that is encouraging. You will also have the significant bar to any further interaction with children posed by your lifelong liabilities under the Sex Offenders Registration Act 2004.
39
Dr Gee tells me that you are currently a moderate-high risk of sexual re-offence.
It is terribly difficult for me to make judgments as to your level of risk in the years that lie ahead. I am prepared to act on Dr Gee’s risk assessment and to accept your counsel’s submission as to your having some prospects of rehabilitation in the future. That is as high as I can put it. It is as high as your counsel puts it.
Current sentencing practice
40 I must take into account current sentencing practices and I do. The relevant Sentencing Advisory Council snapshots (No.192 of 2016 in relation to incest and No 206 of 2017 in relation to Indecent act) are of no great value here at all. The Court of Appeal in the decision of Dalgleish has been critical of past sentencing practices for some instances of the crime of incest. It is intended that sentencing practices must alter and your counsel are on notice as to that decision. The indecent act snapshot provides mere statistics which give no insight at all into the existence, or otherwise, of aggravating features such as the extent of any breach of trust in a given instance of that crime. I have considered the Judicial College of Victoria sentencing manual which sets out some relevant materials including in some cases, overviews of sentences and summaries.
41 One has to be very careful looking at other cases. That is because every case is unique. Some cases involve representative charges or multiple victims, some do not. There are always differing aggravating and mitigatory considerations, differing durations and differing impacts, differing ages of offenders and of victims. No two cases are ever the same. No amount of looking at statistics or other sentencing outcomes in other cases can provide the answer to the correct exercise of my discretion in your case. Each case is very different, so too every offender and what I must do is exercise my sentencing discretion in this case, your case. What is clear enough to me from my experience as a Judge and from reading many cases, and from reading summaries and overviews is that incest committed upon a two year old child is very fortunately, extremely rare.
Offence Gravity
42 The principles which govern sentencing for crimes against children are very firmly established in this State. The crime of incest is viewed very seriously by the Courts for many of the reasons you seem to identify in your letter and in discussions with Dr Gee.
43 In the decision of RBN v R [2011] VSCA 261 the President of the Court of Appeal stated the following:
“This Court has often said that incest is a crime of great seriousness. It is an appalling crime involving the worst kind of breach of trust as between parent and child and it is notorious that it causes long-term damage to the child victims whom it is the parents’ first obligation to protect.”
44 I could easily cite from many other cases from our highest State Court which re-enforce, clarify or restate those same principles. If there was any doubt as to the seriousness of the crime of incest, and there certainly never has been in my mind, well the relatively recent pronouncements from the Court of Appeal in the case of Dalgleish [2016] VSCA 148 are unambiguous. That case spelt out the seriousness of the offence and the reasons for this. The decision dealt with the misconception that seems to have developed as to crimes such as yours not being accompanied by violence. Sexual penetration of a child is by its very nature an act of violence. The Court of Appeal concluded that current sentencing practice did not reflect the objective gravity of the offending or the moral culpability of the offender. The Court spoke of some of the recurring themes in cases involving an offender with ongoing parental responsibilities towards a child under 18. That the recurrent features were the extreme invasion of the victim’s person, exploitation of a vulnerable child, violation of societal norms, long term and severe impact, serious breaches of trust and an undermining of the familial roots of society. These features are common in incest offences occurring across the range of seriousness but the factors distinguishing worst case offending from mid-range offending is the nature and extent of the offending conduct, it’s frequency and duration and the circumstances in which it occurs. The Court of Appeal concluded in that decision that amongst other things, the sentences imposed in the past have devalued the objective gravity of the offence as informed by the egregious breach of trust and the appalling consequences for victims. They stated that sentencing practices for worst category offending were too low and were compressing downwards the sentences even for mid category offences. The Court concluded that sentencing Courts must by increments increase the sentences for mid-range incest offences.
Offence gravity
45
I must pay regard to the gravity of the offences before the court. The offending was not isolated. Two of these charges are laid on a representative basis.
You targeted three victims. They were very young. Acts such as yours against a two year old are almost without parallel in my experience. Penile/vaginal penetration of a two year old, it is almost impossible to comprehend. Penile vaginal sexual penetration of a two year old and penile/oral penetration of a five year old and it was all unprotected so carrying the risk of infection. You knew that what you were doing was seriously wrong. I have no doubt about that at all. I am not able to find any reduction in your culpability. The alcohol at play on the occasion of the last two incidents in the tent is not mitigatory at all. You obviously enough had these underlying urges as the psychological material makes plain enough.
46 You had an obligation to care for and to protect these children. Instead you used them as mere sexual playthings. Penetrating two of them, committing indecent acts upon one of those same two (the five year old) and one other (the four year old), and producing the sordid child pornography of your own child or stepchild. You have exploited your daughters and stepdaughter. You have warped and betrayed all those relationships and committed this gross breach of trust. You have caused your daughters and stepdaughter and your ex-wife immeasurable harm. You know that. You speak of all of these things in your letter and in your discussions with Dr Gee. Insofar as incest is based on the existing familial relationship and has built into the offence itself the breach of trust, of course I do not doubly count it. In assessing the seriousness of the indecent act charges, it is a quite different proposition. There are very many such offences committed by offenders who are not in any position of trust at all. Well you were in a position of great trust and great power and the same can be said of the setting when you produced the child pornography.
47
I pay regard to those authorities dealing with the way in which the seriousness of child pornography offences can be assessed including the case of Garside. [2016] VSCA 774 to which I was referred.As that case makes plain, there have been consistent statements made for many years by many Courts around the land, including the Court of Appeal of this State, as to the gravity of child pornography offences. Many of the cases including Garside deal with offenders accessing such images using the internet or possessing such images, in each case people who have no direct connection to the production of the images.
It is true that in your case, there are not a massive number of images at all. Quite limited numbers as the summary makes plain. It is true that there is no evidence before me of transmission of the images or any intention to transmit or to profit from them or even to share them, but this is an instance of production of the material, not possession. They are graphic images. The conduct in photographing amongst other images, your own sexual penetration of those who trusted you, those who were two and five years of age, well it was evil, it was perverse conduct and richly deserving of strong denunciation and punishment. General deterrence is at the forefront. In child pornography cases where people are charged with possessing such images, we as judges often enough are invited to view a sample of the images. It is an unpleasant task.
It is a rarity to see images of a child as young as your youngest daughter engaged in graphic sexual acts but when seeing such images, I have more than once reflected on who could possibly have produced that sort of image.
Well you are the person who produced this child pornography. You took a lead role in some of the acts and then photographed it. Those captured in the images were people whom you had a duty to protect.
48 One can often enough envisage a worse case of any crime coming before the Courts, including crimes of incest or indecent act or production of child pornography. That may be so but it does not render the instant case less serious than it actually is. The incests are to my mind, extremely serious examples of a very serious crime. The tender age of the victims is significant. I repeat: your youngest daughter was two years old when you chose to commence this course of unprotected penile/vaginal penetration of her as well as committing the act of digital penetration. One could not imagine a more vulnerable victim. She was just an infant. The Court of Appeal speak in the case of Dalgleish of the sort of considerations that distinguish "worst category" offending from mid-range offending. They spoke of the nature and the extent of the offending conduct, its frequency and duration and the circumstances in which it occurs. Well the term “worst category” could still be employed back at the time of the Judgment in Dalgleish being delivered, but following on from that decision, the High Court in Kilic [2016] HCA 48 expressed some concerns as to that style of language. "Worst category offending" the High Court said is offending that is so grave as to actually warrant the maximum prescribed penalty. I must say I viewed the Court of Appeal in Kilic as dealing with the spectrum of offence seriousness in an entirely unobjectionable manner. However owing to the High Court decision, I steer away from the use of the phrase "worst category" to describe your conduct and what I do is try to place your offending on the spectrum of offence seriousness. Just so there is no doubt on this score then; Your conduct in dealing with your two year old daughter in the way that you did the subject of Charge 4 on the indictment, that is unprotected penile/vaginal penetration of your own two year old child laid on a representative basis, is in my view extremely grave offending falling towards the very high end of the offence seriousness. The specific digital penetration (incest) of the same child is also grave. The older step-daughter, well she was older but not by much. She was only five. You penetrated her orally, on a representative basis, as well as digitally.
Sentencing considerations
49 I have taken into account all of the submissions made and the exhibits that have tendered before me. I have not spent time dissecting in these reasons the letter of your mother or your own letter. I have read them both again and I do take them into account as I hope I have already made plain in my reasons to date. I have noted the courses and study that you have done or are doing
Representative charges
50
I must take into account the representative nature of two of these charges on the indictment, and sentence in accordance with the authorities in this area, including R v SBL [1999] 1 VR 706 and DPP v Ellis (2005) 11 VR 287.
The summary sets out the actual facts the subject of the charge and then sets out the number of occasions. But they are not rolled up or composite charges. I am not sentencing you for all of the conduct. Rather I am sentencing you for the particular specified facts of the charge but can have regard to the representative nature of the conduct as described. It follows no claim for leniency can be advanced based on the offending being isolated. I am able also to look at the broader context as well as the adverse effect upon victims of the whole of the conduct where laid on a representative basis.
Serious offender provisions/Totality
51 For matters on the indictment, I will be sentencing you as a serious sexual offender from the time of the third sentence being imposed. Under the serious sexual offender provisions contained in the Sentencing Act 1991, unless I otherwise direct, the sentences passed upon you from the third sentence would be served cumulatively upon the earlier sentences imposed and upon each other and upon other sentences imposed by me. (See s.6E of the Sentencing Act 1991).
52 Additionally, for the sentences imposed from that point on, I must regard the protection of the community as the principal sentencing purpose. The court has available the power to impose a disproportionate sentence in relation to such charges to achieve that purpose. I do not do so here. No one suggests that
I should. I certainly will not pass any disproportionate sentences in this case.
53 I am not free to ignore these serious offender provisions. I must give them due weight. The rule as to cumulation has an evident object and one that is not to be defeated merely by the Court’s exercise of the discretion to direct otherwise. To adopt that as a course would be to undermine what is after all a clear legislative policy. These provisions give effect to the Legislative will that "serious offenders" are in a special category of offenders. (See Beyer v R [2011] VSCA 15 and R v RHMC [2000] 203 CLR 452. See also HPW 2011 VSCA 88. See also the more recent case of Hopson [2016] VSCA 303). So I must give weight to s.6E and the nature of your offending. It is clear that I still must pay regard to the principles of totality, but those principles are clearly modified by this rule. They are certainly though not jettisoned and they are still important.
54 Despite the primacy of community protection, I must also inform myself by reference to the level of risk of re-offending in the same way. Well the risk is significant enough, at least presently as Dr Gee makes plain.
55 I have given consideration to the overall effect of the sentences imposed by me. I have engaged in a last look at the overall effect in endeavouring to avoid a sentence that might be crushing upon you, and to ensure that the overall effect is consistent with your overall actual criminality. Your overall criminality is extremely high.
56 Quite aside from the presumption in favour of cumulation found in s.6E, there would be a strong need to cumulate here in any event. These were serious crimes. Separate acts. Separate occasions. Separate victims. Not minor separate acts. Serious separate criminal conduct. The need for meaningful cumulation would be quite obvious, quite independent of the serious offender provisions. I cannot lose sight of your serious individual crimes committed, as they were, upon individual victims. They must be reflected in the individual sentences and in the level of cumulation selected. Necessarily however, I must otherwise order under s.6E. If not, every sentence from the third imposed would cumulate upon the base sentence and upon each other. The ultimate sentence would be a crushing one. In recognition of the principal of totality, as you will see, I am going to order significant measures of concurrency.
57 Sentencing is never an easy task. I have said in others cases that those who say it is an easy task, well they generally fall into one of two classes; either people who have never done it before, or people who have long since ceased doing it. Then there are the judges who are actually doing it. Judges who strive to strike a balance in the weighting to be given to a variety of sentencing purposes and considerations. Denunciation, rehabilitation, the need for specific and general deterrence, community protection and punishment. There is the need to make judgments as to the weighting to be placed on these various purpose.
58 There are so many factors or matters which must be taken into account by a court. I have to take into account the maximum penalty. All the incests have a 25 year maximum term. I have to pay regard to current sentencing practices and to the impact of your crime upon the victims. I must of course consider your prospects of rehabilitation.
59 I have to punish you. You must be punished for your crimes though justly and proportionately.
60 This court must denounce your conduct. That is important. You have committed extremely serious crimes upon your daughters and stepdaughter. Your conduct was shameful, it was destructive, evil and perverse.
61 I must consider the protection of the community from you. That is the principal purpose for those crimes where you are sentenced as a serious sexual offender but important also for the two offences where you are not to be so treated. Community protection is obviously an important consideration here.
62
You must also be deterred. You must be dissuaded or deterred from ever committing such crimes as these ever again. You counsel argues that can be moderated owing to the absence of past relevant conduct, your early guilty plea and the presence of some remorse here. Also of course that you will be facing a significant period behind bars. The fact is some of the conduct occurred after you had been challenged by your wife. You offended against three children.
This was not isolated offending. Specific deterrence would clearly be given greater weight if you had relevant prior convictions and that is what your counsel was really saying. You are not in that position and there can be at least some limited reduction of the weight given to this purpose. Whilst it is not that unusual to have offences such as these committed by a person with no relevant history, I am prepared to accept your counsel’s argument and moderate this sentencing purpose to a modest degree. It is still obviously of importance though to my task.
63This court must also seek to deter others who are minded to commit this type of offending. That purpose is known to us lawyers as the principle of general deterrence. It is a highly relevant purpose of sentencing for any of the crimes laid on the indictment before me. The courts must send a strong, loud and unequivocal message to those in the community who may think it open to sexually exploit children in any way. The courts, by the sentences passed in these kinds of cases, must make very clear to others that such conduct as yours will not be tolerated and will be met by strong and tangible punishment. Others must be deterred. The Court of Appeal in a case dealing with allegations of sexual penetration of a child and indecent assault has said relatively recently that the fact of that type of offending taking place at all underlines the importance of sentences being imposed, which demonstrate to the community and to any person who might contemplate sexual offending against a child, that such offending is and should be unthinkable and not pursued. The President of the Court of Appeal in that case observed that if it were better understood that offending of this kind would ordinarily attract significant terms of imprisonment, that perhaps the County Court would not be dealing as often as it has to with child sexual offences. See the case of Sadrani 2015 VSCA 202. Those statements apply with equal force to this case. General deterrence is a very powerful purpose of sentencing here for all of the charges on this indictment.
Forensic sample
64 Application is made for a forensic sample order. It is not opposed. I have signed that order and now pronounce it in an abbreviated fashion.
65 I order that pursuant to the provisions of s.464AF of the Crimes Act, that you undergo a forensic procedure for the taking of a scraping from your mouth in accordance with sub-division 30A of Part III of the Crimes Act until a sample of sufficient standard is obtained for placement on the database.
66 I have considered the grounds for making this order. I believe the order is justified owing to the seriousness of the offending, the prior convictions that you possess, the fact that the order is not opposed and that I judge it to be in the public interest.
67 What I am dealing with then, Mr Wylie, is the requirement for you to undergo a scraping from your mouth. It does not sound too pleasant but it is not as unpleasant as it sounds. It is a rubbing of a swab around the inside of your cheeks, that is what will happen. The authorities will approach you in custody and engage in that process. They can use reasonable force to do so. But in the circumstances it should not be a difficulty at all. It is an easy business, it is not particularly invasive. As I say they can use reasonable force to obtain that swab. If they encounter difficulties no doubt they will be back before me, the authorities, making application for a blood test, which to this point I have not authorised. I have only authorised the scraping from the mouth. But I have signed and pronounced that order.
Sentence
68 You have committed a number of serious crimes against those whom you had a positive duty to protect. It seems to me at least that it is inevitable that if a person commits offences of this level of seriousness against a number of different victims at different times, that this will result in very sizeable individual sentences, a very sizeable head sentence and a very lengthy non parole period. I will have you remain seated, I think, while I am passing sentence. I will hand down something so Counsel can follow this because I am moving from cumulation to the extent of concurrency. It is very hard to follow without having some guide, so I will hand it down for you.
69 Charge 4
is the representative charge of incest committed by the introduction of your penis into your two year old daughter’s vagina. Charge 4 pertains to the first such occasion with such conduct occurring on two other occasions.
As I have said, it carries a 25 year maximum term. Yours is an appalling crime.
I convict and sentence you to nine and a half years’ imprisonment. I have sentenced in that matter first as I judge it to be the most serious offence on the indictment for the reasons I hope I have made clear. It is the base sentence.
It seems to me at least that there are practical difficulties in terms of the Serious Offender provisions and cumulation in the event that I sentence on that matter as the fourth sentence imposed by the Court which is what I would do if simply sentencing following the order of the charges on the indictment. I would then have to otherwise direct in relation to that matter, whilst at the same time cumulating other parts of the sentences upon that base sentence. So I sentence first in relation to Charge 4, and that nine and a half year term is therefore the base sentence. I move now then to Charge 1. On Charge 1 indecent act upon your five year old daughter based upon your admissions alone, I convict and sentence you to 18 months' imprisonment. On Charge 2 the first occasion of incest committed upon your five year old stepdaughter being a representative charge pertaining to penile/oral penetration in part based on your admission, you fall to be sentenced as a serious sexual offender. That is the position for all other sentences for charges on the indictment from this point onwards. On Charge 2, I convict and sentence you to seven and a half years imprisonment. On Charge 3, the charge of digital incest, a specific charge committed upon the five year old, I convict and sentence you to seven years’ imprisonment. On Charge 5 the specific act of incest (digital/vaginal) committed upon your two year old daughter, I convict and sentence you to seven and a half years' imprisonment. On Charge 6 the first of the child pornography charges pertaining to the five year old stepchild, I convict and sentence you to two years imprisonment. I sentence you to a two year term of imprisonment for Charge 7 which is the production of child pornography pertaining to your two year old daughter. On Charge 8, I convict and sentence you to two years imprisonment for the indecent act committed upon your four year old daughter in the tent. Finally on Charge 9 I sentence you to two years imprisonment for the indecent act committed upon your five year old stepdaughter in the same tent.
Cumulation in relation to matters not covered by s.6E
70 Firstly I direct as to the level of cumulation. The base sentence, as I say, is the nine and a half year term imposed on Charge 4. I direct that three months of the sentence imposed on Charge 1 is to be served cumulatively upon the base and other sentences, so to that point it amounts to nine years and nine months imprisonment.
Serious Offender from the sentence imposed on charge 2
Cumulation unless otherwise directed
71 As I have sentenced you to terms of imprisonment on Charge 4 and then Charge 1, as I made plain, I have sentenced you as a serious sexual offender in relation to Charge 2 and beyond.
72 I now have to make directions as to the extent of concurrency. That is the extent to which I otherwise direct or order under s.6E Sentencing Act 1991.
73 You will have difficulty following this, I will explain it to you at the end.
74 I direct then that five years and three months of the seven and a half year sentence imposed on Charge 2 (plus two years, three months) five years of the seven year sentence imposed on Charge 3 (plus two years), six years of the seven and a half year term imposed on Charge 5 (plus one and a half years) 18 months of the two year sentence imposed on Charge 6 (plus six months), 18 months of the two year sentence imposed on Charge 7 (plus six months) 12 months of the two year term imposed on Charge 8 (plus 12 months) and 21 months of the two year term imposed on Charge 9 (plus three months) is to be served concurrently upon the base sentence imposed on Charge 4 and the partly cumulative portion of the sentence imposed on Charge 1 and upon each other. It is to this extent then that I otherwise direct under the provisions of s.6E. That translates into an additional eight years cumulation upon the base sentence and part cumulative term imposed on Charge 1 though of course I have followed the legislative scheme in directing the measure of concurrency.
Summary matters
75 As to the summary matters, I convict and sentence you to one month's imprisonment on each charge and those sentences will be concurrent with each other and with all other sentence imposed by me so the total effective sentence remains the same.
Total effective sentence
76
What then is that total effective sentence produced by these various orders?
I appreciate that this is not easy for you to follow. What my order for cumulation and then my orders as to the extent of concurrency produce is a total effective sentence of 17 years' and nine months imprisonment. That is the intended result.
Non Parole period
77 I fix a period of 13 and a half years during which you will not be eligible for release on parole.
Section 18
78 You have been in custody for 274 days. I order pursuant to the provisions of s.18 of the Sentencing Act that this period of 274 days be reckoned as already served by way of pre-sentence detention under this sentence. That declaration is to be entered in the records of the court.
Serious offender status
79 I have made clear I hope that you have been sentenced as a serious sexual offender in relation to the sentences imposed on Charges 2,3,5,6,7,8 and 9. That fact is to be noted in the records of the court.
Section 6AAA
80
I have told you that I have reduced the sentence courtesy of your guilty plea.
I now disclose to you the dimensions of that reduction. There is something of a fiction here as you could never have been convicted by a jury of representative charges laid on a trial indictment. There would have necessarily been a number of additional charges of incest to break the conduct down into single acts. Had you pleaded not guilty and been found guilty by a jury of all the conduct I am dealing with following a trial, I would have sentenced you to 23 and a half years imprisonment. I would have fixed a non-parole period in those circumstances of 19 years and three months. That declaration is made pursuant to s.6AAA and is to be noted in the records of the court.
Sex Offenders Registration Act 2004
81 You have been sentenced by me in relation to four Class 1 and five Class 2 offences under the provisions of the Sex Offender Registration Act 2004. You must comply with your reporting and other obligations under the provisions of the Sex Offenders Registration Act 2004 for the remainder of your life upon your release from prison. I will shortly have handed to you a document that explains your obligations under that Act. You will need to acquaint yourself with it in due course, not sitting down there today, but in due course, but I am simply at this stage having it provided down to you and having you sign, to acknowledge that you have received those explanations as to your responsibilities under that Act.
82 What you will learn when you read that document is that the Sex Offenders Registration Act 2004 imposes a number of conditions upon you now, including impediments to future employment in a variety of areas. There are meaningful impediments to your future contact with children. What you must do is familiarise yourself with those matters, as any breach of the Act or your reporting obligations under the Act, is itself a very serious criminal offence and one punishable by a term of imprisonment.
83 Ms Spowart, you have seen these documents before. I am dealing with the notification of his reporting obligations. It is a very lengthy document. It goes into all of his requirements under that Act. I am not contemplating that he is going to sit there now and read it. He is simply being provided with this and being asked to acknowledge, by his signature, that he has received the notice under that Act. Do you understand that?
84 MS SPOWART: Yes.
85 HIS HONOUR: I will have that come down with my Associate. I was going to suggest you go down. I see you have got a crutch off to the side. If you want to go down, go down. He understands this, do you want to go down or not? You do not need to.
86 MS SPOWART: I think Mr Wylie understands.
87 HIS HONOUR: Yes all right. I will have my Associate go down and have that document signed then.
88 All right, that has been signed by your client. As I said a moment ago,
Mr Wylie, you need to read those conditions very carefully in your own time. There are very serious matters within that document, serious impediments to your future contact with children in the years that lie ahead and you need to be well and truly awake to those. They apply to you.
89 Let me just see if there are any other matters that I need to deal with. Now I have given you that document down at the Bar table so you could follow the individual terms because the Act requires me to move from cumulation to concurrency. I had always found it to be an extremely difficult thing to follow when I was down at the Bar table. Do you understand, each of you, the individual terms that have been imposed?
90 MS SPOWART: Yes.
91 HIS HONOUR: The extent of the cumulation is the cumulation in terms of three months' cumulated with the sentence of Charge 1 onto the base and then I have noted the extent of my otherwise ordering, under s.6E, that is the extent to which I direct concurrency. Again, for your assistance I have provided that down to the Bar table. What I have not read out is the detail in brackets that detail the amount of cumulation being achieved by each of those concurrency orders. Now I shudder to ask but if there is any difficulty in terms of my maths this is the time to tell me but I think the maths is all there, is it? No issues in terms of the calculation of the ultimate total effective sentence?
92 MR GODLEMAN: No, Your Honour.
93 MS SPOWART: From what I can see, no Your Honour.
94 HIS HONOUR: Yes, all right. Ms Spowart your client has been in custody obviously for a significant period of time already but he is receiving a very significant term of imprisonment here today. Were there any custody matters that you want me to alert the authorities to or not?
95 MS SPOWART: No, there's nothing in particular, Your Honour.
96 HIS HONOUR: All right. Are you going to go down and see him downstairs or not?
97 MS SPOWART: I am.
98 HIS HONOUR: Yes all right, thanks very much for your assistance. All right, I will have Mr Wylie now removed, thank you.
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