R v Houston
[2016] VCC 638
•17 May 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-01734
CR-16-00266
IN THE MATTER OF: |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WILLIAM HOUSTON |
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JUDGE: | CHIEF JUDGE KIDD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 May 2016 | |
DATE OF SENTENCE: | 17 May 2016 | |
CASE MAY BE CITED AS: | R v Houston | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 638 | |
SENTENCE
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Catchwords:
CRIMINAL LAW – Sentence – Not guilty plea on first indictment involving buggery, att. buggery and indecent assault charges, guilty plea to second indictment involving indecent assault charges – Historical sex offending – victims were in the care of the offender at Christian Brother’s orphanage
Sentence: 12 years and 9 months imprisonment, with non-parole period of 8 years.
Cases sited:Cheung v R [2001] 209 CLR 1, The Queen v RLP [2009] VSCA 271, DPP v Toomey [2006] VSCA 90, Stalio v The Queen [2012] VSCA 120, DPP v Bales [2015] VSCA 261
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| APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr R. Gibson with Ms N Warda | Office of Public Prosecutions |
| For the Accused | Mr D. Hallowes with Ms A Beech | Croxford Partners |
HIS HONOUR:
Mr Houston, the offences for which you fall to be sentenced today arise out of the time that you were employed at St Augustine’s Orphanage, at Highton, an institution for orphan boys run by the Christian Brothers. You worked at St Augustine’s between the years 1963 and 1971. You were a Christian Brother and left the Order on 14 February 2008.
Circumstances of Offending
I will first deal with the charges relating to Indictment F11186228.2A, to which you pleaded not guilty before a jury of 12. The jury unanimously convicted you of all eight charges on 22 April 2016. These charges relate to three victims, Andrew Marshall[1], Joseph Davies[2] and Cameron Brady[3].
[1]A pseudonym.
[2]A pseudonym.
[3]A pseudonym.
Mr Houston, in sentencing you on this indictment, I am bound by the principles in the case of Cheung[4].It is my responsibility to interpret the facts in a way that is consistent with the jury’s verdict. Your counsel, Mr Hallowes, did not resist the proposition that you fall to be sentenced upon the accounts given by the victims during the trial. The jury rejected your evidence, in which you denied sexually abusing these three boys. The jury also rejected your evidence that you never supervised the dormitory in which Joseph Davies and Cameron Brady resided. I am satisfied, beyond reasonable doubt, of the substance of the accounts given by the three victims. I will outline these facts briefly here.
[4]Cheung v R [2001] 209 CLR 1
Andrew Marshall was aged about 12 years old at the time of the offending.
Charge 1 – Attempted Buggery: In about March 1969, you called Andrew Marshall into the gymnasium on his own. You instructed him to sit on a bench and put your arm around him. He pushed you away. You grabbed him and put him face down until his stomach was on the bench. You pulled his pants down, exposing his naked bottom. He tried to get away from you so you hit him with a leather strap over his back. He attempted to break free. You told him to "shut up", and if he did, you would look after him. You pushed your erect penis against Andrew Marshall’s anus and attempted to forcibly penetrate him.
Charge 2 – Indecent assault: When you were unable to penetrate Andrew Marshall’s anus, you pushed your penis in and out between his thighs. He felt your penis rub against his bottom and genitals.
You punched Andrew Marshall in the side of his ribs a few times and slapped him across the side of his face. You stood him up to face you and grabbed his hair, pulling his head back. You tipped his head back until he was forced to sit on the bench again. Your robes were to the side and your erect penis was exposed. Andrew Marshall was crying. You continued to hold his head back and masturbated yourself. You rubbed your penis over his face and mouth. These are uncharged acts.
Charge 3 – Indecent assault: You pushed your penis into Andrew Marshall’s mouth and ejaculated in his mouth and over his face. You said to Andrew Marshall, “next time, if you are a good boy”. He had bruises down the side of his body and a red hand mark on his face.
Joseph Davies was aged between 11 and 13 years at the time of the offending against him.
On picture nights, which were Fridays or Saturday nights, you took Joseph Davies to the back of the theatre on picture nights and molested him. These are uncharged acts.
Charge 4 – Buggery: When Joseph Davies was 11 or 12 years old, in 1969, you took him from his bed one night in the dormitory you were supervising. You told him to lean over the table and used your hands to spread his buttock cheeks. You then forcibly inserted your penis in to Joseph Davies’s anus and moved it in and out for about five minutes. This caused Joseph Davies much pain.
Charge 5 – Buggery: About a month later, you again took Joseph Davies from his bed and into your room. You made him remove his pyjama pants and you pushed him over the table. You then forcibly inserted your penis into Joseph Davies’s anus and moved it in and out for about five minutes. Again, this caused Joseph Davies considerable pain.
Charge 6 – Buggery: For a third time, a few months later, you came and took Joseph Davies to your bedroom. His pants were pulled down and you again forcibly inserted your penis into his anus. Mr Davies said it lasted for two or three minutes, and afterwards you said to Joseph Davies, “Don’t tell anyone”, and then you went on to say, “Oh that’s right, you can’t tell anyone because you’ve got no one”.
Cameron Brady was aged between 12 and 13 at the time of the offending.
Charge 7 – Indecent assault: One evening when Cameron Brady was in a dormitory supervised by you, he knocked on your door to tell you that he had wet his bed. You took him to the showers. You watched Cameron Brady as he showered and then you took the soap and rubbed Cameron’ penis. You were masturbating yourself while rubbing Cameron Brady’s genitals. When you finished, you slammed Cameron Brady up against the shower wall with your hand.
Charge 8 – Buggery: On another occasion, Cameron Brady wet the bed. He knocked on your door and you let him in. You had him lie down on your bed and lay next to him. You put your hands around his chest and throat area and took out your penis and forcibly inserted it into his anus. You moved your penis in and out of his anus a number of times.
I turn now to the plea indictment, which is Indictment F11186228.1B, which contains 12 charges to which you pleaded guilty on 27 April 2016. The charges relate to three victims, Luke Murray[5], Jonathan Ross[6] and Gerald Watson[7].
[5]A pseudonym.
[6]A pseudonym.
[7]A pseudonym.
Luke Murray was aged between ten and 14 at the time of your offending against him.
Charge 1 – Indecent assault: About three to four months after moving to your dormitory, Luke Murray was asleep in his bed when you put your hand over his mouth and laid on top of him. You put your hand inside your dressing gown and masturbated yourself. You turned his head to the right and gave him a "dry shave" to the left hand side of his face. Minutes later you pulled your right hand away from your penis, put your finger to your mouth and made a "shoosh" sound.
Charge 2 – Indecent assault: Two days later, Luke Murray was asleep in his bed. You put your hand over his mouth, lay on top of him and began to masturbate under your dressing gown. He could feel your hand movements on his body. You turned his head to the side and gave him a "dry shave" by rubbing your stubble against his face.
Charge 3 – Indecent assault: The next night you went to Luke’s bed and grabbed him whilst he was asleep. You climbed on top of him and masturbated yourself.
Charge 4 – Indecent assault: On another occasion, you called Luke Murray to your bedroom and sat him on your lap. You spoke to him about the running sport's championships. You wrapped your arms around Luke Murray then put your hand on his penis over his pyjamas. You lifted your hand quickly and apologised. Seconds later, you again placed your hand on Luke’s penis, over his pyjamas.
Charge 5 – Indecent assault: In mid-1966, you drove Luke Murray to St Vincent’s Hospital because he was in need of medical care. During the car ride, you placed your hand on the inside of his leg. He pushed your hand away. You continued to put your hand on his inner thigh throughout the car ride and were more persistent during the return drive to St Augustine’s.
On another occasion, Luke Murray was disciplined by being made to stand in a corner of the dormitory next to your bedroom for an hour. After lights out, you called him into your room and closed the door behind you. You opened your dressing gown, showing your naked body underneath. He saw your partially erect penis. You held your penis in your hand and asked him if he wanted to touch it. He started crying and yelled out. You told him to "be quiet" and then allowed him to leave. These are uncharged acts.
You sexually abused Luke Murray two to three times a week, over a 12 to 18 month period. Sometimes you would call him to your room. This happened at night or late evenings when he was in his pyjamas. You would be sitting in your chair at your desk, still wearing your Brother’s clothes, which consisted of a black gown and pants. You made him sit on your knee with his buttocks directly over your penis. He could feel your penis getting hard whilst you made small talk about sports. These are uncharged acts.
Jonathan Ross was aged between 11 and 14 at the time of your offending conduct.
Jonathan Ross joined the athletics team and you were his coach. You sexually abused Jonathan Ross twice a week for about three years, when he joined the athletics team. You would grab him, pull him close and rub your exposed erect penis against his backside over his pants. These are uncharged acts.
Charge 6 – Indecent assault: On one occasion you were in the
St Augustine’s swimming pool with Jonathan Ross on your own. You pulled your togs down, exposing your penis. You grabbed hold of him, that is Jonathan Ross, and turned him around so he was facing away and pulled his buttocks up against you crotch. He felt your penis rubbing against his buttocks over his togs.
The same conduct which I have just described, which forms part of Charge 6, occurred on at least two other occasion. These are uncharged acts.
Charge 7 – Indecent assault: On a further occasion, about a year later, that is about a year later after Charge 6, Jonathan Ross was in the sandpit. You were leaning against a wall and called him over. As he approached, he saw that you had the bottom buttons of your robe undone, with your fly open and your half erect penis was exposed. You grabbed hold of him, that is Jonathan Ross, and pulled his backside to your crotch, pushing your penis against his buttocks, over his pants.
Charge 8 – Indecent assault: On another occasion, Jonathan Ross was training for athletics. You drove him away from the orphanage and dropped him off at a point so he could run back. When you were alone in the car with him, you put your hand on his inner thigh. You put pressure on his leg and he could not move. He was frightened and moved back in his seat. You told him how good he was at running and that he should beat the other boys back to the orphanage. You then moved your hand up his thigh to his crotch and rubbed his penis over his shorts, whilst talking to him.
Gerald Watson was aged between 12 and 13 at the time of your offending conduct against him.
In the period leading up to the charged offences, you stopped at Gerald Watson’s bed in the evening after lights out. You bent down and whispered in his ear, asking if he was awake. He pretended to be asleep. You kissed his cheek and he felt your unshaven cheek rub up against his skin. As the nights went on, you continued to stop at his bed, kissing his cheek and whispering in his ear. On about the third occasion, you kissed him on the lips. He froze, as he was afraid of you and was worried that if he protested, you would punish him with the strap. These are uncharged acts.
Charge 9 – Indecent assault: On one occasion, when you bent over Gerald Watson in his bed, you whispered in his ear and kissed him on the side of his face. You rubbed your stubble against his cheek. You licked the side of Gerald’s face, kissed him on his lips and then pushed your tongue into his mouth. Gerald felt you licking him inside his mouth, your tongue pressing against his tongue and on his teeth. Gerald was too frightened to react.
Charge 10 – Indecent assault: Not long after this incident, you climbed into Gerald Watson’s bed and lay on top of him. He was under the covers and felt the pressure of your weight on top of him. You licked his face and rubbed your unshaven cheek against him. You pushed your tongue into his mouth and kissed him. You stayed there for five to ten minutes and then left.
Charges 11 and 12 – Indecent assaults: On another occasion, you went to Gerald’s bed and lay next to him. He felt the weight of your body on him. You put your face over his face and had your leg bent over the top of him. You kissed and licked his face and put your tongue in his mouth, pressing your lips hard against his. You rubbed his face, neck and head with your hands. You put your arms around Gerald and squeezed him. You moved your leg up and down his body and he felt it rub against his penis and crotch area.
I have made mention in the outline of the evidence thus far of a number of uncharged acts in relation to a number of the victims. I do not impose any punishment on you for these acts. These uncharged acts enable a more realistic assessment to be made of the nature, degree and true significance of the criminality involved in the charged offences. They negate any submission that your offending was isolated conduct.
Interview
Mr Houston, you were interviewed by police on 9 April 2014 and exercised your right to silence.
Offence Gravity and Impact on Victims
I now turn to make some comments about the gravity of your offending conduct.
In each case, the six boys who you abused were especially vulnerable. They were Wards of the State. They were young and they were under your control. You were fully cognisant of this vulnerability. This is most strikingly apparent through your words to Joseph Davies, “Don’t tell anyone. Oh that’s right, you can’t tell anyone because you’ve got no one”. You were meant to protect and nurture those boys. You did not do that. Instead you arrogantly abused your authority over each of them for your own perverse sexual gratification. What occurred here amounted to a disgraceful breach of trust. The abuse of power was especially egregious with respect to the offending against Joseph Davies, Cameron Brady, Luke Murray and Gerald Watson, given that you were their dormitory supervisor.
The offending in each case was appalling. It was degrading and humiliating, and it was frightening for the boys who were powerless to stop your offending.
The offending involving the attempted buggery event or episode against Andrew Marshall, and the buggeries against Joseph Davies and Cameron Brady, are exceptionally serious examples of this kind of offending. Your assaults upon them were brutal and callous. The anal penetrations against Joseph Davies and Cameron Brady were violent, causing, as they did, great pain and distress. Your offending against Andrew Marshall involved a high degree of sustained physical violence and force. You took no care for the feelings of the boys and showed a contemptuous indifference to their cries of pain and protests.
I regard the indecent assault in which you forcibly thrust your penis into Andrew Marshall’s mouth, as a very bad example of this offence, that is the offence of indecent assault, involving as it did, attendant violence, penetration and ejaculation on his face and over his mouth.
Tragically the complaints or partial complaints of three of your victims, Luke Murray, Andrew Marshall and Cameron Brady, were variously met with denials and physical punishment by other staff members at the orphanage. You are not to be punished for the behaviour of other staff at the orphanage. The reaction of staff simply serves to demonstrate how it was virtually impossible for a child in those circumstances to come forward and meaningfully pursue a complaint. It explains how you were able to continue to offend in this disturbing atmosphere of impunity.
The overall offending took place over a protracted period of time, spanning some seven years.
There were six victim impact statements tendered by the prosecution during the plea. Jonathan Ross, Joseph Davies, Luke Murray and Gerald Watson read out their statements in court. Ms Warda, for the prosecution, read out the victim impact statement of Cameron Brady. There was also a victim impact statement written by the wife of Andrew Marshall, Jodie Marshall[8].
[8]A pseudonym.
It is clear from each of these documents that your offending has had a profound impact on the lives of your victims. It is difficult to adequately summarise the entirety of the victim impact statements here, however, the overwhelming theme which comes through, is the devastating and lasting impact your offending has had on these men. Each of them described a range of problems in their lives. A number of them spoke about intimacy troubles with spouses at various times. Whilst they do not claim that all of the troubles they have encountered in life are attributable to your offending, or to your offending alone, what is clear is that their lives were changed for the worse and significantly so because of their dreadful experiences, at your hands, as young children.
Criminal History and Personal Circumstances
I now turn to your personal circumstances and history.
You have no criminal history.
Mr Houston, you were born on 8 February 1939 in Melbourne and you were raised in Coburg. Your father was employed in clerical work with a local business. You are the middle child of three. Your sister, Margaret, who was seven years older than you, passed away in 2013. Your brother, Michael, was three years younger than you and passed away in 1978 in a car accident.
At the end of Year 8, you decided you were interested in becoming a Christian Brother. Your parents arranged for you to attend St Enda’s, a boarding school for trainee Brothers, in Strathfield NSW. You were 14 when you commenced there in 1953.
In 1954 you spent a year at Box Hill Training College, before returning to Strathfield for two more years. In 1956 you obtained your Leaving Certificate and relocated to Lower Plenty for the first year of your training to become a Christian Brother in 1957. This was a very strict year and very few visitors were permitted. In 1958, you were moved to Bundoora, where you were also trained as a teacher. In 1959 you took your final vows as a Christian Brother and graduated with your teacher’s qualification.
You then commenced a long list of appointments at various schools and colleges across Melbourne and Regional Victoria, in which you served as a teacher and sports master in every school, which included your time at St Augustine’s between the years 1963 and 1971.
In 1993 you moved to Mt Sion in Parkville, looking after the elderly Christian Brothers in a hostel. You were placed in charge of the hostel from 1999 until 2006.
In late-2006 and early-2007, you applied for dispensation to leave the Brotherhood. This required approval from Rome. During this time you lived in a Brother’s house in St Kilda for six months and later moved into a private rental in West Footscray. This was the first time that you had ever lived alone.
You worked during this time as a driver for a man who had a fleet of VHA vehicles. You moved to Glenroy in July 2007. And you remained at this residence until you were remanded in custody.
In your spare time, you have been actively involved in the Therry Penola Old Boys Football Club since 1978. You are also a keen ballroom dancer since 2006.
You are supported in the community by family members, including your nephew, Michael, who lives in Canberra and your niece, Gaye, who lives in Victoria. You are also well supported by various members of the football club and your dancing partners.
Your counsel tendered a character reference written by your niece, Gabrielle O’Laughlin, and a friend, Nicola Fragomeni, whom you met 40 years ago through the North Old Boys Athletics Club. They both speak very highly of you and the support you have provided them over their lives.
Guilty Plea- Indictment F11186228.1B
Mr Houston, I acknowledge that you entered a plea of guilty to indictment F11186228.1B, which is the plea indictment, thus saving the victims the trauma of giving evidence at trial and saving the State the cost of a further trial. This plea was a late one and the victims were still required to give evidence at the committal hearing. That should not overshadow the fact that your plea gave great comfort to the victims in this matter, which the prosecutor, Mr Gibson, recognised. The community and victims are well served by a plea of guilty to offences of this kind, even if it is entered at the last minute.
By contrast you get no such discount for the entry of a plea of guilty in relation to Indictment F11186228.2A, which was the trial indictment.
Age and Health
I turn to your age and your health.
Mr Houston, you are 77 years old. The offending occurred between the years 1963 and 1971. You would have been aged between 25 and 31 years of age at the time of the offending. For a man of your age, you are in good health.
Your age is a significant factor. It is relevant in a number of ways.[9]
[9]The Queen v RLP [2009] VSCA 271 at [39]
In particular, each year that you spend in custody will represent a substantial portion of your remaining life expectancy. I am also conscious that the substantial term of imprisonment which I am about to impose upon you carries the very real prospect that you may not live to be released from prison. Clearly, that is a terrible state of affairs for you.
While you are in good health for a man of your age, it can be expected that as you age into your 80s, your health will probably decline.
I therefore accept that your advancing age in time is likely to make imprisonment more burdensome for you.
Mr Hallowes also submitted that your advanced age is relevant in considering the length of the non-parole period of your sentence, that is, that you should have a longer period of time on parole. I accept this.
Your advancing years are also relevant to the issue of your risk of
re-offending. I deal with this in a minute, or below in the context of delay.
I have moderated each component of the sentences which I will impose upon you, in light of your age. In particular, I will impose a shorter non-parole period than I otherwise would have been inclined to impose, so as to enhance the possibility of you living out the last part of your life in society.
Delay, reform and risk of re-offending
I turn to the issues of delay, reform and the risk of re-offending.
The offences occurred many years ago. You were charged with the offending in 2014. This makes a delay of some 45 to 50 years.
The lapse of time since of the commission of offences of this kind is not unusual. It is often the case with offending such as yours, that the victims do not come forward for many years after the offending, and I cite Toomey's case.[10]
[10]DPP v Toomey [2006] VSCA 90
That said, the delay in this case does have some consequences.
You fall to be sentenced to a substantial term of imprisonment as a 77 year old man, decades after the offending. If you are ever released from prison, you will, by any measure, be very elderly.
You have not been convicted of, or charged with any offences in the intervening years. You have led an apparently blameless life since this period, which I take into account. This stands to your credit.
A lack of subsequent offending, despite you teaching boys in a number of educational institutions in the intervening years, suggests that you are a reduced risk to the community.
You have, however, shown no remorse for your offending. You have never really confronted what you did to these boys, let alone atoned for your wrongdoing. You contested the charges on the trial indictment, Indictment F11186228.2A, as was your right. Your counsel did not submit that there is any evidence of remorse in relation to your plea of guilty to the charges contained in the plea indictment, Indictment F11186228.1B. You are not to be punished for your lack of remorse, but you get no discount for it, and it does raise a question about whether your reform as a person is complete.
Despite that observation, I accept your counsel’s submission that given your advanced age and the historical nature of the offending and the lack of offending in the intervening years, you are not someone who poses a considerable risk of re-offending. Additionally, any risk which you pose today will be less still, should you to be released from prison. I am prepared to conclude that you are extremely unlikely to re-offend should you live to be released from prison.
Specific deterrence has little, if any, role to play in your case.
Serious Sexual Offender Provisions
I turn to the serious sex offender provisions.
Pursuant to s.2A of the Sentencing Act, I order that you are to be sentenced as a Serious Sexual Offender in relation to Charges 3 to 8 of Indictment F11186228.2A, and all of the charges on Indictment F11186228.1B.
Section 6D of the Sentencing Act provides that, when sentencing you as a serious sexual offender, I must have regard to the protection of the community from you as a principle purpose for which your sentence is imposed, when I am determining the length of your sentence. I have, however, found that you do not currently pose a significant risk to the community.
The prosecution has not sought a disproportionate sentence.
Totality and Cumulation
Section 6E of the Sentencing Act contains a presumption of cumulation between charges when sentencing serious sexual offenders. As you fall into this category, I must consider the presumption when formulating your sentence. Any orders for cumulation must, however, be moderated to the extent necessary to give effect to the principle of totality.[11] The totality principle requires me to ensure that your sentence remains "just and appropriate" for the whole of your offending, even though I will be sentencing you to multiple terms of imprisonment, involving multiple victims.
[11]DPP v Bales [2015] VSCA 261 at [42]-[44]
Mr Hallowes rightly made the concession that there is clearly a need for cumulation, to a degree, but there should not be total cumulation. Mr Gibson, for the prosecution, submitted that an appropriate portion of the sentence on each of the offences should be ordered to be served cumulatively, to reflect the number of offences against the same victim on different occasions, and also to reflect that there are offences against six separate victims. I must balance each of these competing considerations in formulating your sentence.
I will make no order for cumulation in relation to Charge 2 on the trial indictment involving Andrew Marshall, because this offending was intimately connected to Charge 1, being the attempted buggery. You also do not fall to be sentenced as a serious sexual offender for the offending involving the attempted buggery and indecent assault which immediately followed, which is Charges 1 and 2. The same cannot be said of Charge 3, which does attract the serious sexual offender provisions. Charge 3, which is an indecent assault which involved the oral penetration of Andrew Marshall with your penis, is sufficiently separate and distinct in time, nature and gravity to warrant cumulation.
I will also make no order for cumulation on Charge 12 on the plea indictment involving Gerald Watson, given that it overlaps with Charge 11.
Otherwise I will make orders for cumulation in relation to each offence.
I have, however, moderated the individual sentences and the degree of cumulation, given the number of offences you fall to be sentenced for, to take into account the principles of totality.
Current Sentencing Practices and Maximum Penalties
A table of cases was provided to me by the Crown as an aid to current sentencing practice and they are on the court file.[12] Mr Hallowes accepted these cases informed current sentencing practice in this matter. Obviously these cases are examples only and each case turns upon its own facts and circumstances.
[12]This table is on the Court file.
Mr Hallowes recognised that he was not in a position to make submissions that sentencing practices at the time of your offending were markedly different to the sentencing practices of today, and I note the case of Stalio.[13]
[13]Stalio v The Queen [2012] VSCA 120
I turn now to the maximum penalties for each of the offences you fall to be sentenced for: Buggery, 20 years'; attempted buggery,
ten years'; indecent assault on a male person, prior to 8 November 1967, ten years'; indecent assault on a male person, subsequent to 8 November 1967, five years'.
General Deterrence, Just Punishment and Denunciation
The many factors I have thus identified, in particular your old age, must be balanced against the need for the sentence to properly reflect the principles of general deterrence, denunciation and just punishment.
The principles of general deterrence, denunciation and just punishment loom large when I come to consider your sentence.[14]
Mr Gibson, for the Crown, submitted as much and your counsel,Mr Hallowes, properly conceded this. Children need to be protected. The law plays a vital role in sending a message to anyone else contemplating offending of this kind. General deterrence, while appropriately moderated, must remain front and centre of the sentencing exercise, in spite of the age of these offences and despite your age. The objective seriousness of the offending here still demands that I impose a substantial period of imprisonment on you.[14]DPP v Toomey [2006] VSCA 90 [14]
Your old age cannot justify the imposition of an inappropriately low sentence. The sentence I impose must still reflect the magnitude of your offending.
Sentence
Mr Houston, would you please stand. Mr Houston, I sentence you as follows:
Dealing first with trial indictment, which is Indictment F11186228.2A, I sentence you as follows:
(a) On Charge 1, attempted buggery, you are convicted and sentenced to three years' and three months'.
(b) On Charge 2, indecent assault on a male person, you are convicted and sentenced to 20 months' imprisonment.
(c) On Charge 3, indecent assault on a male person, you are convicted and sentenced to two years' and six months' imprisonment.
(d) On Charge 4, buggery, you are convicted and sentenced to five years' and nine months' imprisonment. This is the base sentence.
(e) On Charge 5, buggery, you are convicted and sentenced to five years' and nine months' imprisonment.
(f) On Charge 6, buggery, you are convicted and sentenced to five years' and nine months' imprisonment.
(g) On Charge 7, indecent assault on a male person, you are convicted and sentenced to 20 months' imprisonment.
(h) On Charge 8, buggery, you are convicted and sentenced to five years' and nine months' imprisonment.
I direct that Charge 4 be the base sentence. I direct that six months of Charge 1; six months of Charge 3; 16 months of Charge 5;
16 months of Charge 6; three months of Charge 7; and 16 months of Charge 8 be served cumulatively upon each other and upon
Charge 4.
That is a total effective sentence of 11 years' for the trial indictment.
Turning now to the plea indictment, Indictment F11186228.1B,
I sentence you as follows:
(a) On Charge 1, indecent assault on a male person, you are convicted and sentenced to 18 months' imprisonment. This is the base sentence.
(b) On Charge 2, indecent assault on a male person, you are convicted and sentenced to 18 months' imprisonment.
(c) On Charge 3, indecent assault on a male person, you are convicted and sentenced to 18 months' imprisonment.
(d) On Charge 4, indecent assault on a male person, you are convicted and sentenced to 18 months' imprisonment.
(e) On Charge 5, indecent assault on a male person, you are convicted and sentenced to 10 months' imprisonment.
(f) On Charge 6, indecent assault on a male person, you are convicted and sentenced to 18 months' imprisonment.
(g) On Charge 7, indecent assault on a male person, you are convicted and sentenced to 18 months' imprisonment.
(h) On Charge 8, indecent assault on a male person, you are convicted and sentenced to then months' imprisonment.
(i) On Charge 9, indecent assault on a male person, you are convicted and sentenced to 12 months' imprisonment.
(j) On Charge 10, indecent assault on a male person, you are convicted and sentenced to 12 months' imprisonment.
(k) On Charge 11, indecent assault on a male person, you are convicted and sentenced to 12 months' imprisonment.
(l) On Charge 12, indecent assault on a male person, you are convicted and sentenced to eight months' imprisonment.
I direct that the sentence on Charge 1 be the base sentence. I direct that three months of Charge 2; three months of Charge 3;
three months of Charge 4; one month of Charge 5; three months of Charge 6; three months of Charge 7; one month of Charge 8;
two months of Charge 9; two months of Charge 10; and two months of Charge 11, be served cumulatively upon each other and upon on the base sentence, being Charge 1.
That is a total effective sentence on the plea indictment, Indictment F11186228.1B, of three years' and five months' imprisonment.
Further, I direct that 21 months of the sentence imposed on the plea indictment, Indictment F11186228.1B, be served cumulatively upon the trial indictment, Indictment F11186228.2A.
That makes for a global effective sentence on both indictments of
12 years' and nine months' imprisonment.
I direct that you must serve eight years before you are eligible for parole. I will attach two tables, summarising these sentencing orders to the document.
You may sit down, Mr Houston.
Pre-Sentence Detention
Pre-trial detention is - I have got 25 days.
MR HALLOWES: That is right.
HIS HONOUR: Is that right, Mr Gibson?
MR GIBSON: What was that, Your Honour?
HIS HONOUR: Twenty-five days pre-trial detention?
MR GIBSON: Yes, Your Honour, agreed.
HIS HONOUR: Is that including today, or not including today?
MR GIBSON: Not including today, Your Honour.
HIS HONOUR: Mr Houston, I declare that 25 days - you have served 25 days by way of pre-sentence detention.
Section 464ZF
Pursuant to s.464ZF of the Crimes Act, I direct that you undergo a forensic procedure for the taking of an intimate sample. The order was not opposed by you. I must caution you that under legislation, that police officers may use reasonable force to enable the procedure to be conducted.
Sex Offenders Registry
The charges of attempted buggery and buggery are Class 1 offences for the purposes of the Sex Offender Registration Act. The charges of indecent assault of a male person, pursuant to s.68(3) and
s.68(3A) are Class 2 offences. Accordingly, as I am sentencing you for five Class 1 offences and 15 Class 2 offences, the reporting period pursuant to s.34(1)(c)(i) of the Sex Offender Registration Act is life, and I will have my associate approach you, Mr Houston, for you to sign those relevant documents.
6AAA
Pursuant to s.6AAA of the Sentencing Act 1991 (Vic), I indicated that had you not pleaded guilty to the plea indictment, Indictment F11186228.1B, I would have sentenced you to a total effective sentence of five years on that indictment alone.
Now, I have unrevised copies of the sentencing reasons that can be handed to the parties, and to any journalist for the purposes of accurate reporting. I remind everybody that the reasons are not revised and of course everybody should be aware of their obligations under s.4 of the Judicial Proceedings Act.
Is the anything else?
MR GIBSON: Your Honour, there's a matter that I would like to mention to my friend. We have just done so at the Bar table, but it was in relation to the second indictment, the plea indictment, - - -
HIS HONOUR: Yes.
MR GIBSON: - - - as to which of those charges fell under the serious sexual sentencing provisions of the Sentencing Act? I believe last time we did say that not all of them did. Our preliminary view is that Charges 1 to 7 were not include in the serious sexual schedule, but - and I note that Your Honour said that they were all included.
HIS HONOUR: Yes.
MR GIBSON: So perhaps if I can have a moment.
HIS HONOUR: Yes.
MR GIBSON: If Your Honour leaves the Bench.
HIS HONOUR: Yes, all right.
MR GIBSON: And I can check with Mr Hallowes and we can reach an agreed position, Your Honour.
HIS HONOUR: Yes. I will leave the Bench for a few minutes.
MR GIBSON: Thank you, Your Honour.
(Short adjournment.)
HIS HONOUR: Yes.
MR GIBSON: Thank you, Your Honour. I have discussed it with my learned friend. There is nothing we want to say about it, Your Honour, and we don't want to make any submissions about the way Your Honour has configured the serious sexual offender provisions of the Sentencing Act, Your Honour.
HIS HONOUR: Well, by that you mean that I have applied the legislation correctly?
MR GIBSON: By that I mean you've applied the legislation correctly, Your Honour.
HIS HONOUR: Yes, in accordance with the submissions, yes.
MR GIBSON: Yes.
HIS HONOUR: Thank you.
MR GIBSON: Thank you, Your Honour.
HIS HONOUR: Mr Gibson. Well there is nothing else then?
MR HALLOWES: No, Your Honour.
HIS HONOUR: All right, yes, if you could just take the prisoner away please. Yes, thank you.
MR GIBSON: Thank you, Your Honour.
HIS HONOUR: Adjourn the court.
- - -
Indictment F11186228.2A (Trial)
| Charge | Victim | Offence | Maximum | SSO Offence | Sentence | Cumulation |
| 1 | AM | Attempted Buggery s68(3) | 10 years | No | 3 yrs 3 mths | 6 mths |
| 2 | AM | Indecent assault on a male person s68(3A) | 5 years | No | 20 mths | - |
| 3 | AM | Indecent assault on a male person s68(3A) | 5 years | Yes | 2 yrs 6 mths | 6 mths |
| 4 | JD | Buggery s68(1) | 20 years | Yes | 5 yrs 9 mths | Base |
| 5 | JD | Buggery s68(1) | 20 years | Yes | 5 yrs 9 mths | 16 mths |
| 6 | JD | Buggery s68(1) | 20 years | Yes | 5 yrs 9 mths | 16 mths |
| 7 | CB | Indecent assault on a male person s68(3A) | 5 years | Yes | 20 mths | 3 mths |
| 8 | CB | Buggery s68(1) | 20 years | Yes | 5 yrs 9 mths | 16 mths |
| TOTAL EFFECTIVE SENTENCE | 11 years | |||||
Indictment F11186228.1B (Plea)
| Charge | Victim | Offence | Maximum | SSO Offence[15] | Sentence | Cumulation |
| 1 | LM | Indecent Assault on a Male Person s68(3) | 10 years | No | 18 mths | Base |
| 2 | LM | Indecent Assault on a Male Person s68(3) | 10 years | No | 18 mths | 3 mths |
| 3 | LM | Indecent Assault on a Male Person s68(3) | 10 years | No | 18 mths | 3 mths |
| 4 | LM | Indecent Assault on a Male Person s68(3) | 10 years | No | 18 mths | 3 mths |
| 5 | LM | Indecent Assault on a Male Person s68(3) | 10 years | No | 10 mths | 1 mth |
| 6 | JR | Indecent Assault on a Male Person s68(3) | 10 years | No | 18 mths | 3 mths |
| 7 | JR | Indecent Assault on a Male Person s68(3) | 10 years | No | 18 mths | 3 mths |
| 8 | JR | Indecent Assault on a Male Person s68(3A) | 5 years | Yes | 10 mths | 1 mth |
| 9 | GW | Indecent Assault on a Male Person s68(3A) | 5 years | Yes | 12 mths | 2 mths |
| 10 | GW | Indecent Assault on a Male Person s68(3A) | 5 years | Yes | 12 mths | 2 mths |
| 11 | GW | Indecent Assault on a Male Person 68(3A) | 5 years | Yes | 12 mths | 2 mths |
| 12 | GW | Indecent Assault on a Male Person 68(3A) | 5 years | Yes | 8 mths | - |
| TOTAL EFFECTIVE SENTENCE | 3 yrs 5 mths | |||||
| 6AAA STATEMENT | 5 years | |||||
[15] The Serious Sex Offender Declaration was amended under s104A of the Sentencing Act 1991.
GLOBAL SUMMARY
Direct 21 mths of the sentence imposed upon Indictment F11186228.1B be served cumulatively upon Indictment F11186228.2A (11 yrs)
| TOTAL EFFECTIVE SENTENCE (GLOBAL) | 12 years 9 mths |
| NON-PAROLE PERIOD | 8 years |
| PRE-SENTENCE DETENTION | 25 days |
| OTHER RELEVANT ORDERS | Forensic Sample Order Sentenced as a serious sexual offender on charges 3 - 8 (F11186228.2A) and 8 -12 (F11186228.1B) SORA – Life |
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