DPP v Carr

5 You, your wife, and your two children, that is your 8 year old son and his 4 year old sister, were in the habit of visiting their uncle and aunt on a regular basis. When you stayed overnight, your family all shared a bedroom which had two beds in it. Your son was asleep on a king single bed which had been pushed up against that other bed in the room. He shared that bed with his sister. You had left your position next to the wall furthest from him on the double bed and then engaged in the conduct described. It was early in the morning and concluded at around 9 am. Again, the events occurring immediately after are adequately described in the summary. The witnesses gave evidence consistent with the trial summary. Your wife woke up to see you where you most certainly should not have been, that is lying partially on your son on the other bed. You jumped back into your position when you realised she was awake and then you pretended to be asleep. She quizzed you as to what was happening and though you kept your eyes closed, you said, 'Nothing'; that is to say nothing had happened. She then saw her son shaking or trembling in the bed. She took immediate and decisive action. She was so disturbed by what she saw that she rang her sister who was actually elsewhere in the same house and that was to request that the sister come to the room and then look after the young girl. Whilst that was attended to the mother left the house with her son. She drove to the family home and parked outside and there the mother received an account from the boy in the car parked outside the family home. He was shaking with fear and began crying as he recounted some of what you did to him, saying, 'Did you see, Momma? Did you see?'

6 He did not on that day disclose everything you had done. He held back from disclosing the most serious acts. At a later stage, so not on that day, you told him that if he told his mother what you had done that you would kill her. Not that it is necessary to establish the threat to kill charge but he believed your threat. At a later point when the mother asked him if anything else had happened and pressed him in that respect, he disclosed to his mother the more serious conduct, being the penetrative conduct. When asked why he had not disclosed earlier, he told his mother about the threat that he had received from you. He said that he was scared that he would lose her because you had threatened to kill her.

7 This was unmistakably very serious offending indeed.

8 You were arrested and interviewed in January 2018 and made a no comment interview, as was your right. You ran a trial, as was your right, and at trial your counsel suggested directly to your wife that she was inventing an account to support her son's account. That really made very little sense given that it was in no way in dispute that the mother took the immediate action in ringing her sister from that bedroom and then taking steps to get her son out of the room and the house in advance of receiving any account from him at all. Those things all occurred and were obviously driven by her concerns as to what she had actually seen. Through your counsel you challenged the truthfulness and accuracy of your son's account. He gave evidence at the special hearing. It was suggested to him that he was telling the police these things to make his mother or the police happy. The jury entirely rejected those arguments and plainly accepted the boy as a witness of truth. I am hardly surprised. He was a most impressive witness. Given his age he was actually quite remarkable. I will turn shortly to the various submissions made on the plea.

9 It was accepted by all concerned, and I accept, that the standard sentencing scheme does not apply to my task, as your various sexual crimes occurred before the commencement date of that legislation. That legislation came into operation for a selection of crimes committed after 1 February 2018. You are fortunate indeed that the standard sentencing scheme does not apply to you. The standard sentence for incest is 10 years. The standard sentence for sexual assault is four years. Had the scheme actually applied to you, inevitably you would have received more significant terms, a higher total effective sentence and a higher non-parole period. However, as I say, those provisions do not apply to my task given the commission date of this sexual offending.

10 No victim impact statement was filed in this matter. Ms Caruso submitted at one point in the course of the plea that, accordingly, I could find no evidence of any specific impact upon the victim. At the same time, of course, she was conceding the seriousness of the crimes, especially the incest offences. I have no doubt at all that there has been impact here. How could there not be? For a start, there is the evidence of your son trembling and shaking on the bed and later in the car as he recounted the less serious conduct. He was crying as he related that conduct and asked his mother if she had seen what you did to him. The mother said that the account came out little by little and it was hard for him to disclose. Of course it was. He was eight. He was expressing to her fears that others, for instance, journalists, might come to know of these things that had happened to him. He commented to his mother on the later occasion as to why he had not told her about the more serious conduct. He thought you would kill his mother. I repeat, the boy was eight. He was crying in the course of that later discussion. Well, what else do I know? The family unit has been broken up. That is a fact. First, you left the home owing to the allegations. You are now in prison and you will be for many years. He will grow up without a father. How does he explain that? What does he say to people about that? What attitude will he have to sex as he approaches adolescence and has a better understanding or grasp of how warped this conduct was, of what his own father did to him? No doubt your child would not have anything resembling a full grasp of the way your crimes will impact upon him in the years that lie ahead. Maybe he really will never have a full grasp of that. It is true that I cannot make specific findings as to specific impacts at specific times. Perhaps that is all that Ms Caruso is really submitting, but I suspect really she was taking it a bit further than that, as she prefaced the suggestion that I could find no impact by saying that she took no joy in the making of that submission. I told her it gave me no joy to hear it being made. In any event, if she was submitting that I could not find any impact here in the absence of a victim impact statement, I entirely reject that submission. I do not accept that I am unable to draw inferences in this area. It would defy belief, logic, experience and common sense to accept that submission as to there being no impact.

11 It is legitimate to have regard to the potential impact on an immature victim which the ordinary course of human affairs suggests is likely to flow from the commission of this type of crime. It is common place for courts to take into account the potential impact which sexual abuse is likely to have in moulding the character and personality of the victim. I hardly need an expert to tell me what is so obvious. See the case of Rankin [2001] VSCA 158. For an offence such as incest against a young child the Court may assume from the nature and gravity of the offence the real possibility of very severe psychological repercussions. See the case of Lomax [1998] 1 VR 551. I will later in these reasons also refer to other cases touching upon the seriousness of the crime of incest and the reasons for that stance. It is a destructive crime. It ruptures the family unit as it has here. I do not need expert evidence on that score. There is just no doubt in my mind that these crimes committed upon him by his father will reverberate throughout the course of his life. They will have a significant and lasting impact upon him. How could they not? He was 8 and you were his father, a father who will be in prison for many years. The family, his family has changed forever.

12 Ms Caruso appeared both at the trial and on the plea. She raised a number of matters in mitigation on the plea conducted on Monday of this week. There was an excellent written outline marked as Exhibit 1. The outline went into detail as to your personal background. It also went into detail as to the relevant sentencing purposes, the matters in mitigation, the relative gravity of the offending and the absence of some matters in aggravation. There was also a report from a neuropsychologist, Ms Lofthouse. Ms Caruso made submissions as to the way in which your disability might be taken into account. Ms Caruso also relied upon a bundle of course completion documents and one urine screen.

13 Your Counsel conceded that this was very serious offending. She raised the possibility of non-custodial options for a few of the less serious offences but conceded that a sizeable head sentence was required with a non-parole period. She argued that there should be a decent gap between the head sentence and the non-parole period.

14 Ms Duckett who appeared to prosecute on the day of the plea but not at trial had filed some plea submissions prepared by trial counsel dealing with some practical matters. See Exhibit A on the plea. Ms Duckett made some oral submission challenging some aspects of the defence submissions, firstly the defence submission that there was a very tight time sequence involved in the sexual offending. Ms Duckett who had not had the advantage of seeing your son give evidence characterised the offending as taking longer than that, spilling over from night to daytime. If I may say so, I am not sure that is the correct way to view your son's evidence. I took his reference of 'night to day' as indicating some uncertainties as to the precise timing of the complete event. I still took him to be describing a tightly grouped set of acts of no great duration at all. The prosecution challenged the application of any of the principles from the case of Verdins. They challenged the suggestion that some of the less serious acts did not warrant terms of imprisonment. They challenged the submission made as to lack of impact. They also challenged the submission made as to your prospects of rehabilitation. The prosecutor suggested your prospects were in fact precarious. I say at once I do not accept that argument

15 Before turning to these various matters raised on your behalf, I turn firstly to your background. I really have no reason not to accept the personal family background that has been placed before me. It is contained in detail in the written outline and the expert report. I see no need to restate your background in any great detail. What I will do is merely set out some salient points.

16 Very briefly then, you are now 41 years of age born in 1978. You were born in India and you came with your family to this country when you were about 14. I enquired directly, and I was told directly, that you are an Australian citizen. I required your counsel to get instructions on that point as otherwise there might have been the need to have regard on the plea to the risk of deportation. That risk does not arise here because, of course, you are an Australian citizen. You are one of four children and your three siblings live in Australia as well. You are close to them and also to your mother. Your father died about ten years ago. In your teens in this country, you transferred from a regular school to a special school for children with mild intellectual disabilities. After leaving school you have held a variety of jobs as disclosed in the outline and the expert report. You were a welder prior to my remand of you. You are working now in prison in that same capacity.

17 You were a married man but you were separated from your wife owing to the events for which I am passing sentence. You have had some health issues with the non epileptic or pseudo seizures discussed in the report placed before me. They are not relied upon as in any way increasing your custodial burden. You have also obviously had some issues with alcohol and that has been potentially problematic for its interaction with the non epileptic seizures.

18 It is plain from the report of Ms Lofthouse that you do not function at a high level. Far from it. You have an intellectual disability and that has been a lifelong condition and is not owing to some later acquired brain injury. There are old reports referred to by Ms Lofthouse which confirm that view.

19 I have already said, and say it again, your criminal history for an old single appearance for unrelated offending is of no relevance to my task at all. You plainly still have support from your extended family.

20 Since being in custody you have been doing a number of courses and programs. You have returned a clean urine sample and, as I have said already, you are working whilst in custody. You are receiving visits from your extended family.

21 I take into account the report of Ms Lofthouse dated 8 October 2019. She has taken the effort to actually attend at the Hopkins Correctional Centre and has spent three hours in your company. That is, if I may say so, three hours more than many so called experts spend with the disturbing and ever growing use of video links for these assessments. She did not use a video link. She attended in person, which is exactly what should be done. She has also had regard not just to a history from you but to previous medical records and reports that provide further information from other sources. As a result it is a much more valuable report than many I see produced on pleas before this court, owing to the sensible steps that she has taken to be thorough in her assessment.

22 Of course I accept there is an intellectual disability. There is just no question about that. It is described in a variety of ways in her report and by implication in the other reports or documents she has had access to. There is no consistency in terms of the labelling of your condition. She says at one point that your current test results are commensurate with the results of the 1993 assessment and consistent with you having a developmental disorder, being a mild intellectual disability. At other points in the report she describes your full scale IQ falling in the extremely low range. It was 61. You are described as demonstrating significant impairments across knowledge, language and the processing of verbal materials. On testing you are said to demonstrate a mild to moderate executive dysfunction. She says at one point the testing is consistent with significant intellectual impairment and speaks then of the 1993 test disclosing that you were moderately intellectually disabled despite later in that same paragraph disclosing that those 1993 results were commensurate with a mild intellectual disability. Towards the end of the report she describes a global and enduring pattern of significant intellectual impairment. Now, it may just be an aspect of the terminology used in the particular field. The IQ may rank it as what is described as a 'mild intellectual disability'. Of course that is not to say there is a mild impact.

23 On any view of the materials, you function at a very low level indeed and you always have. So tags or labels are not the key thing for me to consider. However your disability is labelled or tagged, it is clear that your disability has had a sizeable impact upon you over the course of your life. That much is obvious. You have very poor reading skills. You have obvious limited numeracy. You have nonetheless some strengths in your makeup and you have adapted quite well and functioned as the major breadwinner for many years. You held down jobs. More significantly, your disability, such as it is, does not erode in any way your understanding or appreciation of the seriousness and wrongfulness of this criminal conduct or impact upon your ability to actually be deterred. It did not obscure your intent and it is pure guesswork to suggest that it impacts upon your ability to make calm and rational choices. I am not satisfied on the balance of probabilities that there is any realistic connection between your disability and this offending. Nor for that matter was your counsel suggesting that there was any realistic connection. She was explicit in conceding that the first limb of the case of Verdins was not enlivened here, that there was no reduction of your moral culpability in a Verdins fashion. I agree that it does not apply. So I am not satisfied that there is any reduction in your moral culpability on a Verdins basis. She argued that the 3rd, the 4th and the 5th limbs from that case were enlivened. I see no reason on a Verdins basis to reduce the weight to be given to general or specific deterrence. You can certainly be deterred. You should be deterred and counsel conceded that your impairment does not impact upon that ability at all. Nor are you functioning at a level where there should be reduction in the weight to be given to general deterrence.

24 At best the report suggests that there may be some increased burden if your impairment is not taken into account and if you do not receive appropriate treatment. That makes a number of assumptions as to what may take place in custody down the track. It is therefore very much a conditional view but I am prepared in the circumstances to find some modest increase in custodial burden here owing to your intellectual disability. So the 5th limb is given some weight. I accept the Crown's argument that there is an aspect of speculation in Ms Lofthouse's report but it does not seem to me to be a speculative or "big call" to say that someone with an intellectual disability will find prison more onerous than someone without that disability. I act on that theory then and make some modest allowance for that fact on the strength of the 5th limb of that case that you have heard discussed.

25 There is no risk assessment conducted in that report and no acceptance by you that you have committed any crimes at all so of course the report does not provide any explanation at all as to your offending or deal in any way with the risk of re-offence.

26 I take into account the report. Though I do not find any Verdins reduction in your moral culpability, I still take into account your disability in the general way spelt out by Ms Caruso in her submissions. It is after all a matter personal to you and you are the person I am sentencing so it is something I must have regard to. See paragraph 19 of those submissions.

27 Your counsel initially argued that I should find that you had, as she put it, 'potentially really good prospects of rehabilitation'. When pressed she argued that I should find at least that you have reasonable prospects of rehabilitation. There is strong family support and you have had positive engagements with medical practitioners in the past. She argued that you had no relevant prior criminal history and would not have access to your children again. You had a good employment record. I raised with her my concerns that really I still have no understanding of your motivation. You were not affected by alcohol or drugs so we can rule out disinhibition arises from those sorts of things. You were prepared to take the massive risk of sexually assaulting your own child in a room in the presence of the rest of your family including your wife. There must have been some very strong and aberrant drive at play to take that style of risk. I do not know why you did what you did. I can therefore have no real sense of why you did it and hence what level of risk exists into the future. You may yet have access to other children.

28 You face a lengthy term of imprisonment. That will surely have some role in deterring you. It is likely that you will be required to undertake a sex offender's program. That may reduce your future risk but that would likely be more valuable if there was some acknowledgement by you of your conduct which at this point seems most unlikely. I suppose that may change. You will also have the significant bar to any further interaction with children posed by what will be lifelong liabilities under the Sex Offenders Registration Act 2004.

29 It is very difficult for me to make meaningful judgments as to your level of risk into the future. It seems though sitting where I sit at the moment that I can only really be quite guarded.

30 You do not admit your wrongdoing as some do. As a result, there is no expert material placed before me explaining in any way the conduct or commenting on treatment needs and future risk. I reject the Crown submission that your prospects are precarious. In my view, that is just too pessimistic a view.

31 I am prepared to act your counsel's secondary submission as to your having reasonable prospects of rehabilitation into the future.

32 I must take into account current sentencing practices and I do. They are though but one of a host of matters that I must consider and they are not a controlling factor. For what it is worth, I have looked at the relevant Sentencing Advisory Council snapshots (No.217 of 2018 in relation to incest and No.231 of 2019 in relation to sexual assault). I looked also at the threat to kill snapshot No.174 of 2015. That later snapshot is quite an old one. In each case I have looked at the more up to date SACStat online data. But I have to be very careful about all this data in relation to incest given the decision of Dalgleish and the signal to increase sentencing practices from that decision. Most of the data in the incest snapshot would predate that decision. The Court of Appeal in the decision of Dalgleish was quite critical of past sentencing practices for some instances of the crime of incest. The Court conveyed that sentencing practices must alter.

33 The sexual assault snapshot, it gives no information at all as to the existence, or otherwise, of aggravating features such as the extent of any breach of trust in a given instance of that crime. Well here you offended against your son and for the sexual assault charges unlike the incest, that aggravating feature is not actually built into the offence.

34 I have also considered the Judicial College of Victoria sentencing manual which sets out overviews of sentences and summaries. See 31.11.3.1 & 2 for incest overviews and summaries; 31.11.2.2 sexual assault summaries. Also threat summaries 30.9.5.1.

35 Quite aside from the caution driven by considerations of the Dalgleish decision and the inadequacy of past sentencing practices, one always has to be careful looking at other cases or statistics. That is because every case is different. As Ms Caruso argued correctly, many cases that come before the Court involve 'course of conduct' offending, sometimes even over many years, with representative or rolled up charges. There can be additional violence, there can be degradation over and above the sexual acts, there can be injury, even filming of the acts. There are all manner of potential aggravating features. The Court sees them all. There are virtually always differing aggravating and mitigatory considerations, differing durations, differing impacts, differing ages of offenders and of victims. Even differing relationships for the crime of incest. No two cases are ever the same.

36 What I must do is exercise my sentencing discretion in your case for your crimes. What is also obvious is that, unlike so many of those covered by the data or the case summaries I have considered, you have none of the very sizeable sentencing benefits that apply to someone who has pleaded guilty and at an early stage. You have run a trial as was your right. But here there is no remorse and there are none of the usual very sizeable benefits which apply to most people who plead guilty.

37 Your counsel concedes the seriousness of the offending, particularly the incest. All of the crimes on this indictment related to an 8 year old child. Crimes against vulnerable children are viewed seriously by the Courts and for good reason.

38 The crime of incest is viewed very seriously by the Courts.

39 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."

40 The case of Dalgleish [2016] VSCA 148 spelt out the seriousness of the offence and the reasons for this. The decision dealt with the misconception that the Court suggested may 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 the age of 18. They said 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 they went onto describe the factors distinguishing worst case offending from mid-range offending. That being the nature and extent of the offending conduct, its 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 unequivocally then that sentencing practices for worst category offending were too low and were also 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. That notion of incremental uplift has been totally dashed by the High Court.

41 The Court of Appeal has often enough in recent times seriously questioned the desirability or utility of seeking to place a particular offence on the spectrum of offence seriousness. They have from time to time discouraged the use of adjectives to describe where on that spectrum of offence seriousness an offence is said to fit.

42 I must however still make some assessment of the nature and the gravity of an offence before me. Your offending was not the type that regrettably is often enough seen before the Courts. That is to say offending that is longstanding in duration. That is not what I am dealing with here at all. These sexual acts occurred in a tight time frame on that single day. They were unmistakably serious of course, especially the incest offences involving as they did penetration. There was however no violence above and beyond the actual acts themselves, no threats at that point though there was the later threat seeking to avoid disclosure of your crimes. There was no ejaculation. No physical injury. The various sexual acts were quite brief, some lasting but a handful of seconds.

43 The victim was only 8 years of age. He was assaulted as he lay on his bed in close proximity to his sleeping 4 year old sister and mother. He should have been entirely safe surrounded as he was by his family in his Aunt's home. Instead he was seriously offended against. By you, his father. You knew that what you were doing was seriously wrong and criminal. I have no doubt about that at all. There is nothing in the report of Ms Lofthouse saying otherwise. As I have said already, I am not able to find any Verdins type reduction in your culpability.

44 As you know, you had an obligation to care for and to protect your child. Instead you engaged in these acts. You have totally warped that relationship and committed this gross breach of trust. In so doing, undoubtedly you have caused your son and for that matter your ex-wife significant harm. Your acts will reverberate upon your son for many, many years to come.

45 Insofar as incest is based on the existing familial relationship and has built into the offence itself this concept of breach of trust, I do not doubly count it.

46 But as I said earlier, it is a very different proposition when I come to assess the seriousness of the sexual assault charges. 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. Some of the sexual assault acts are plainly less serious than others. For instance the pinching of the buttocks pales almost into insignificance when measured against the rubbing of your penis against your son's penis or his buttocks. However they occurred in that context, that is you being the victim's father, you touching him in the various ways in the room in the presence of his sleeping mother and sister. I cannot just ignore the true context and focus purely on the physical act.

47 One can often enough envisage a worse case of any crime coming before the Courts, including crimes of incest or sexual assault. Of course, that does not render the instant case less serious than it actually is. Your crimes were serious, the incest's especially. They are plainly well removed from the most serious examples of incest but they are still undoubtedly serious crimes deserving of strong punishment. The threat to kill is a relatively serious example of that crime in my view. You told your own son that you would kill his mother if he disclosed your criminal conduct. What a terrible threat to issue to your son who was but a boy, and it had an impact on the boy as you hoped it would. When he ultimately disclosed, he said he had not done so earlier for fear of losing his own mother. I believe each of the sexual assault charges also demand a prison term. As I have said, I cannot just ignore the true context of the individual acts and focus purely on the physical act.

48 I will be sentencing you as a serious sexual offender from the time of the third prison sentence being imposed. 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).

49 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. That provision is not engaged here. There is no warrant to impose any disproportionate sentences in this case and I will not.

50 I must though give due weight to the serious offender provisions and to s.6E. It is clear that I still must pay regard to the principles of totality of sentence. Those principles are of course modified by this rule but they are still important.

51 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 criminality. Your overall criminality is high enough here.

52 Quite aside from the presumption in favour of cumulation found in s.6E, there would be a need to cumulate to some degree. These were serious crimes. It is true that the sexual acts occurred in that one episode hence there would be a strong enough claim for significant concurrency. No doubt though each act would play a role in the overall impact brought about. Then of course there is the threat to kill which occurred on a different date. It was a serious crime in its own right; make no mistake about that. 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 then undoubtedly be described as a crushing one. In recognition of the principal of totality, as you will see, I am going to order very significant measures of concurrency.

53 Sentencing is never an easy task. There are a number of sentencing purposes and considerations. Denunciation, rehabilitation, specific and general deterrence, community protection and just punishment.

54 There are a large range of factors which must be taken into account by a Court. I have to take into account, for instance, the maximum penalties. Incest has a 25 year maximum term which says all that needs to be said as to the serious manner in which the Parliament of this State views the crime.

55 I have to pay regard to current sentencing practices and to the impact of your crime. I must of course consider your prospects of rehabilitation. I can only be quite guarded as to those prospects in this case. I judge them to be reasonable.

56 I have to punish you. Well, that is obviously an important sentencing consideration. You must be justly and proportionately punished for your crimes.

57 I must denounce your conduct. That is also an important consideration. You have committed some very serious crimes upon your son. You really should be ashamed of yourself but of course you are not.

58 I must consider the protection of the community from you. That is in fact the principal purpose for those crimes where you are sentenced as a serious sexual offender but also of some weight for the offences where you are not to be so treated. Community protection is obviously a consideration in play here. I cannot just ignore it.

59 You must be deterred from committing crimes such as these ever again. It is not that unusual to have offences such as these committed by a person with no relevant criminal history. Here it is true the offending occurred on a single day and you no longer have access to the children. I am very much in the dark as to your future risk. You will surely be deterred to a degree by the sentences I will soon pass. I still must give specific deterrence some weight in my sentencing task.

60 This court must also seek to deter others who are minded to commit this type of offending. The principle of general deterrence is a highly relevant purpose of sentencing for any of the sexual crimes laid on the indictment before me. The courts must send a strong, loud and an 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 punishment when brought before the Courts. General deterrence is a powerful purpose of sentencing here for all of the sexual charges on this indictment. It must also be given some weight for the threat to kill given the context of that threat and the makeup of the recipient, a vulnerable child. Your child.

61 There are some ancillary orders sought here.

62 Application is made for a forensic sample order. It is not opposed. I have signed that order and I pronounce it in an abbreviated fashion.

63 I order pursuant to s.464ZF of the Crimes Act that you undergo a forensic procedure for the taking of a scraping from your mouth in accordance with the relevant provisions of the Crimes Act until a sample of sufficient standard is obtained for placement on the database. I am satisfied that, in all circumstances, the making of the order is justified owing to the seriousness of the offending, the fact that the order is by consent or not opposed and that I judge it to be in the public interest to make the order.

64 What this deals with, Mr Carr, is an application to take a swab from your mouth. That is what I am authorising. I am not authorising a more invasive process, for instance, a blood sample. So someone in a position of authority will approach you in custody and give you a swab or introduce a swab into your mouth, run it around the inside of your mouth to obtain a sample for placement on the DNA database.

65 I have to tell you though that notwithstanding your present lack of opposition, when the time comes for the taking of the sample, the person taking it can use reasonable force. There should be no need to use any force. It is not a particularly invasive process and if there were difficulties, no doubt the authorities would be back before me making an application for a blood sample which to this point, I have not authorised. I have signed that order.

66 I think what I will do at this stage is I will have you stand up please.

67 Now, you will find it very hard to follow my sentences. There are a lot of sentences and I am making orders as to the extent to which they run together. It is very hard at the best of times to understand those things. Rest assured, I will explain all of this at the end so you will understand exactly what it is that you are looking at as a result of these sentences. Once you are taken downstairs, no doubt Ms Caruso will come down and discuss the sentences I have imposed upon you but do not be concerned if you get lost in all of this. You will. It is not easy to follow. I am going to hand down a document - that is how hard it is, I am going to hand down a document so counsel can at least follow my sentences and check the mathematics of it.

68 Now, I regard Charges 3 and 5 as obviously the most serious here. Charge 3, in my view, just overshadows Charge 5 in terms of seriousness.

69 On Charge 3, the charge of incest constituted by putting your penis into your son's mouth, I convict and sentence you to 7 years' imprisonment.

I sentence on that matter first because it seems to me there are practical difficulties in terms of the Serious Offender provisions and cumulation in the event that I sentence on that matter as the third sentence imposed by the Court which is what I would do if I sentenced simply 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. It is a tricky business. So I sentence first in relation to Charge 3. That 7-year term therefore is the base sentence.

70 I move now then back to Charge 1. On Charge 1, this is the sexual assault, obviously the least serious of the charges constituted by pinching your son's buttocks, I convict and sentence you to 7 days' imprisonment.

71 On Charge 2, sexual assault constituted by tongue kissing your son, you fall then to be sentenced as a serious sexual offender. That is the position for all of the other charges on the indictment from this point onwards. On Charge 2, I convict and sentence you to 2 months' imprisonment.

72 On Charge 4, the sexual assault charge constituted by kissing your son's buttocks, I convict and sentence you to 3 months' imprisonment.

73 On Charge 5, incest constituted by you sucking your son's penis, I convict and sentence you to 6 ½ years' imprisonment.

74 On Charge 6, the sexual assault constituted by rubbing your penis against your sons penis, I convict and sentence you to 2 years' imprisonment.

75 On Charge 7, the sexual assault constituted by rubbing your penis against your son's buttocks I convict and sentence you to two years imprisonment.

76 Finally, on Charge 8, the threat to kill charge, I convict and sentence you to two years imprisonment.

Cumulation or concurrency in relation to matters not covered by s.6E

77 The base sentence therefore is the 7-year term imposed on Charge 3. The

7-day sentence imposed on Charge 1 will be served concurrently with all other sentences including the base sentence.

Serious Offender from the sentence imposed on charge 2

78 As I have sentenced you to terms of imprisonment on Charge 3 and then Charge 1, as I made plain a moment ago, I have then sentenced you as a serious sexual offender in relation to Charges 2 and beyond.

79 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.

80 As I have said, you will have difficulty following this. It is not easy but I will explain it to you at the end.

81 I direct then that all (that is 2 months) of the 2 months' sentence imposed on Charge 2, All (that is 3 months) of the 3 month' sentence imposed on Charge 4, 5 ½ years of the 6 ½ year term imposed on Charge 5, 21 months of the two year sentence imposed on Charge 6, 21 months of the two year sentence imposed on Charge 7, and finally 14 months of the two year term imposed on Charge 8 is to be served concurrently upon the base sentence imposed on Charge 3 and upon each other.

82 It is to this extent then that I otherwise direct under the provisions of s.6E of the Sentencing Act. That translates into an additional 28 months or 2 years 4 months cumulation upon the base sentence though of course I have followed the legislative scheme in directing the measure of concurrency.

83 So, my orders as to the extent of concurrency produce for you a total effective sentence of 9 years 4 months' imprisonment. That is my intended result.

84 I fix a period then of 6 years 4 months during which you will not be eligible for release on parole.

Section 18

85 You have been in custody for 57 days. I order pursuant to the provisions of s.18 of the Sentencing Act that that period of 57 days be reckoned as already served by way of pre-sentence detention under this sentence. That declaration is to be entered into the records of the court.

86 You have also been sentenced as a serious sexual offender in relation to the sentences imposed on Charges 2, 4, 5, 6, 7 and 8. That fact is also to be noted in the records of the court.

87 Have a seat please. There is one further thing I have to explain to you and it takes a little bit of time.

Sex Offenders Registration Act 2004

88 You have been sentenced by me in relation to two Class 1 and five Class 2 offences. You must therefore 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 your obligations in due course. I am 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 this Act of Parliament.

89 What you will learn when you read or have that document read to you is that the Sex Offenders Registration Act 2004 imposes a number of conditions upon you 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 in due course with these various matters, as any breach of the Act or your reporting obligations under that Act, is itself a very serious criminal offence and one ordinarily punishable by a term of imprisonment.

90 Now, Ms Caruso, you have seen these documents before. I am dealing really with the notification of his reporting obligations. It is a very lengthy document as I am sure you know. It goes into all of his requirements under this Act. I am not contemplating that he or for that matter anyone in the dock is going to sit there and come to grips with what is in this document. It would be beyond anyone to do that. It would certainly be beyond your client to do that. He is simply being provided with this document and being asked to acknowledge, by his signature, that he has received the relevant notice under that Act. So you understand that, do you not?

91 MS CARUSO: Yes, Your Honour. I am going to go down after him.

92 HIS HONOUR: So you will go down. I mean at some stage someone is going to need to go through these things in great detail with him, though of course it is a sizeable sentence that he is receiving in any event. I will have that come down with my Associate. If you go with her please and just ensure that your client understands what he is being asked to do.

94 HIS HONOUR: I have signed that so I will have you go down with Ms Todisco please.

96 I have provided that document down to both of you to assist you in the individual sentences and the extent of concurrency. Is there any problem in terms of the mathematics of it?

97 MS CARUSO: Your Honour, I will check that perhaps when Your Honour stood down. If there is any issue, I will let Your Honour know.

99 MS CARUSO: I need to just sit quietly and just make sure before I agree. I think my learned friend might have checked and - - -

100 MS CRAVEN: I have checked, Your Honour, and I am satisfied that it is correct.

101 HIS HONOUR: I have checked and the computer checks out. I have checked more than once because it is never an easy business because one is so used to pronouncing cumulation rather than concurrency but, in the document I have handed down to you, on each occasion, I have then inserted what I regard as the effect in terms of cumulation. For instance, 'Nil cumulation', when all of the sentence is concurrent obviously but I have gone through it pretty carefully and I do not believe there is any issue in terms of mathematics.

102 All right. Are there any other matters I need to deal with at all?

105 HIS HONOUR: No. Now, so your client has been in custody already of course. Is there any need for me to make any custody management directions at all?

109 HIS HONOUR: Yes. All right. So you will go and see him downstairs anyway, Ms Caruso?

111 HIS HONOUR: Well, I will just sign the formal order and then I will stand down. Just give me a moment.

112 Look, I have signed the formal court order then so that completes the matter then. So Mr Carr can be taken downstairs and Ms Caruso will come down to see you downstairs, Mr Carr.

113 And I have an appeal so I will stand down until 11 o'clock, I think. Yes.