DPP v Cunningham [2022] VCC 2201

1. Given the jury's finding of guilt, the evidence adduced at trial is the factual basis for sentencing you today. I will provide a brief summary of the circumstances of your offending, as follows.
2. The charges that you have been found guilty of relate to your grooming and sexual abuse of an 11 year old girl. The victim is the granddaughter of one of your distant cousins.
3. At the time of your offending the victim was living at her grandmother's house. You visited this house and also spent time with the victim and her grandmother whilst attending church, or when they visited your home.

Charge 1 - Sexual assault of a child under the age of 16 (course of conduct)

1. During several visits at the victim's home between 1 January and 12 September 2020, you called the victim into either the dining room or kitchen. You then looked at the victim's vagina, saying you were 'checking for hairs'. You also spoke to the victim about getting her period. You did this at the victim's home, and on at least one occasion when the victim was visiting your house with her grandmother. This conduct is the subject of Charge 1 (sexual assault of a child under the age of 16 - course of conduct).

Charge 2 - Sexual activity in the presence of a child under the age of 16

1. On 6 September 2020, the victim and her grandmother came to your house for dinner. At one stage of the night, prior to dinner, you were in the lounge room with the victim while the victim's grandmother and your wife were in the kitchen. You told the victim to close the glass sliding door between the kitchen and the lounge room. You then showed the victim a pornographic 'GIFY', or short video, on your phone. That video depicted an adult male's penis penetrating an adult female's vagina. You told the victim 'do not tell anyone, it's between you and me'. You then ate dinner with the victim, her grandmother and your wife.

Charge 3 - Sexual penetration of a child under 12

1. On 12 September 2020, you went to the victim and her grandmother's home for dinner. While her grandmother and your wife remained in the lounge room you went into the dining room with the victim. You sat on a chair and told the victim to walk in front of you. As she stood in front of you, you pulled her pants and underwear down. You directed her to open her legs and you proceeded to look at her vagina. You told her you needed to 'check for hairs'. You then put your finger into her vagina, asking the victim whether it hurt or not or if it felt good. This conduct is the subject of Charge 3; sexual penetration of a child under 12.
2. The victim did not respond to you when you asked her those questions, but later disclosed that she felt two little cramps when you did this.
3. You also asked the victim, 'Since I felt yours, do you wanna feel mine?' The victim told you no, because she was not ready, and you responded to her, saying, 'when you're ready'.

Charge 4 - Sexual penetration of a child under 12

1. Later on the night of 12 September 2020, you called the victim to the kitchen to help you prepare dinner. The victim's grandmother and your wife remained in the front lounge room and were unable to see into the kitchen and dining room.
2. While in the kitchen with you, you pulled her pants down and put your finger into her vagina again, saying, 'No, you're not ready yet'. This conduct is the subject of Charge 4; sexual penetration of a child under 12.
3. You then told her to pull her pants up and you both finished plating dinner. You and the victim then went into the lounge room with the victim's grandmother and your wife to eat dinner.

1. The next day, the victim told her grandmother what you did to her.
2. In the days after the complaint, the victim's grandmother spoke with her counsellor about what the victim had told her. She then made a report to the victim's support worker. The same day that service contacted Child Protection Services and a formal complaint was made to police.
3. You gave a 'no comment' interview to police on 16 September that year. I now turn to consider the nature and gravity of your offending.

1. The victim's grandmother was aware of your past offending and took steps to make sure that the victim was not alone with you. This included not permitting the victim to go alone with you to the supermarket. She effectively warned you off because of your past behaviour. The offending took place in locations where the victim ought to have been entitled to feel safe, and to be safe. In this context your offending is particularly brazen, and you repeatedly took advantage of small windows of opportunity to be alone with the victim. You breached the trust of the victim's grandmother and these are aggravating features of your offending.
2. Your offending is opportunistic in nature and occurred over the span of approximately nine months. It is serious offending but given the range of behaviours typically charged for these offences often involves far more extreme examples, the specific conduct found by the jury for Charges 1, 3 and 4, in my view, sits at mid-range[5], and in reaching this conclusion I have regard to the conclusions that the Court of Appeal referred to in the case of McPherson. Charge 2 involves the playing of a short pornographic video in the presence of the victim. I conclude this is a low level example of that type of offending. Taking this into account, together with the aggravating features, I conclude that the gravity of your offending in relation to Charges 1, 3 and 4 is at higher mid-range, and for Charge 2, lower mid-range, but your moral culpability overall is very high for each of the offences for which you are charged.

1. You are 58 years of age and were born in Horsham. You are the third youngest of a family of 13 and have lived most of your life in the district. You were close with your mother, but sadly she passed at aged 53. You describe your relationship with your father was 'rough'. He passed some 22 years ago.
2. You went to school in Horsham until Year 9. You experienced bullying and found school difficult due to an undiagnosed learning difficulty. You were in and out of boys' homes and your habitual absences from school led to you being incarcerated at Turana Youth Training Centre for six months. You had some work as an apprentice jockey, and as a welder, until you suffered a back injury. You have not worked much since and have been on a disability support pension for most of your life. Until your injury you volunteered with the SES in Queensland and Victoria.
3. You have been married for 33 years and have five children and 24 grandchildren. You recently moved to Ballarat with your wife.
4. You are interested in genealogy, reading, TV, and have been involved with the Church of Latter Day Saints since 1986 as an assistant cleric. You were involved with the preparation of music for the church services at Horsham when you lived in the area.
5. You report as suffering from tachycardia, hypertension, a hiatus hernia, lower disc prolapse and high cholesterol. You do not drink alcohol or use illicit substances.

1. Ian Mackinnon, consultant psychologist, in his report dated 17 November 2022, diagnoses that at the time of committing these offences you suffered from paedophilic disorder, which has degraded your ability to reason and make sound judgment, distorted your perception of your behaviour, eroded your sense of morality and community responsibility and weakened your capacity for empathy.[6] He opines that you labour with entrenched and dangerous antisocial and criminal traits, primarily expressed in sexual offences involving minors. You have never sought mental health treatment of your own volition, nor demonstrate any enthusiasm for engaging in such treatment in the future. Mr Mackinnon opines that you would be unlikely to benefit from engagement in sex offender programs or psychological therapy more generally.
2. Mr Mackinnon found that your functional intelligence and general cognitive functioning falls within the normal adult range and, accordingly, I conclude that this diagnosis has no impact on your moral culpability, which remains at a high level.

1. Mr Cunningham, you have a significant prior conviction for incest offences for which you pleaded guilty in 1992. You were sentenced to seven and a half years' imprisonment with a non-parole period of five and a half years. In 2007 you were sentenced to 18 months' imprisonment with a non-parole period of 11 months for indecent assault charges involving a child who was the friend of your daughter.

1. You have shown no remorse and continue to deny having committed these offences. You stated to Mr Mackinnon that the allegations were a product of revenge and added that the 2007 offences for which you were convicted were a consequence of blackmail.

Prospects of Rehabilitation and Risk of Re-offending

1. Mr Mackinnon considers you pose an ongoing risk of committing further child sex offences and your prospects of rehabilitation are negligible.

1. Victim impact statements made by the victim and her grandmother, and her grandmother's partner, were read aloud to the court.[7] The victim described how she felt scared, frightened and confused by your actions. She had to move and lost relationships she had previously enjoyed. Her grandparents describe the impact on them to ensure that the victim is made to feel safe and secure.

1. Mr Cunningham, two of the offences of which you have been found guilty (being sexual penetration of a child under the age of 12, Charges 3 and 4, and sexual activity in the presence of a child under the age of 16, Charge 2), have legislative standard sentences of 10 years and four years imprisonment respectively. Sexual penetration of a child under the age of 12 is also a Category 1 offence, which must incur a sentence of imprisonment.
2. The standard sentence scheme is outlined under s5A of the Sentencing Act 1991. The standard sentence for the offence is the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of the offence, is in the middle of the range of seriousness.[8] These objective factors affecting the relative seriousness of your offending, Mr Cunningham, are to be determined without reference to matters personal to you, or a class of offenders, and rather are wholly by reference to the nature of your offending.[9]
3. Furthermore, under s5B of the Sentencing Act I must consider the standard sentence as one of the factors relevant to sentencing and must only have regard to sentences previously imposed for these offences as standard sentence offences. However, this does not limit the matters I am otherwise required or permitted to consider in determining the appropriate sentence for standard sentence offences,[10] nor is it intended to affect the approach to sentencing, known as instinctive synthesis.[11]
4. I also have regard to the provisions set out in s11A of the Sentencing Act in fixing your non-parole period.
5. Mr Cordy, for the prosecution, identified the comparable case of McPherson v The Queen.[12] In a similar vein to your case, the offending occurred in the context of that offender becoming friends with the victim's parents. The victim was an eight year old female and the offending occurred when the perpetrator visited her family home. For one charge of sexual penetration of a child under 12 the offender was re-sentenced to six years and six months' imprisonment with a non-parole period of four years. In that case, Priest and T. Forrest JA explain that:

'The standard sentence is designed to represent a "mid -range" example of this offence, however the offence covers such a wide range of sexual misconduct as to make the notional "mid-range" very difficult to identify. The misconduct can be penetration by finger, penis or tongue, or by an object. It can be momentary or protracted. It can be committed on all ages up to 12. The impact on the victim can be manageable or catastrophic. This is not to say the phrase is meaningless - it must be given its place in the sentencing calculus - but it is an intangible concept and judges ought to be wary of affording it too much weight in the sentencing exercise. In particular, as this Court has said, judges must avoid engaging in "two-stage" sentencing, whereby a vague, essentially intangible concept is used as a starting point from whence the sentence is adjusted upwards or downwards, as the case dictates. It is a factor in the application of the intuitive synthesis in the same way that the maximum sentence is. No more, no less'.'[13]

1. Accordingly, I take into account the standard sentences stipulated under legislation as a factor in my application of the intuitive synthesis. In a similar way, I take into account the maximum sentences prescribed by legislation. I consider the seriousness of the specific offences to which you have been found guilty of committing, Mr Cunningham, and adjust the standard sentence accordingly. However, the mere fact that some of these charges are standard sentencing offences does not outweigh or negate other sentencing considerations which I must consider.
2. It is relevant to note, in relation to this offending, the time duration of the offending in each instance is not particularly of long duration and the age of the victim, at 11, is close to the upper end of the range of applicable ages for that offending.

1. In sentencing you I must have regard to a range of matters such as the seriousness of your offending, your culpability for it and your personal circumstances. I must balance the interests of the community in denouncing criminal conduct with the interests the community clearly has in seeking to ensure, as far as is possible, that offenders are rehabilitated and are reintegrated into society. I must impose a sentence which is proportionate to the gravity of the offence, considering the circumstances. The sentence must be no more than is necessary to satisfy those various objectives of sentencing.

1. However, Mr Cunningham, by virtue of your prior criminal record you fall to be sentenced on all charges as a serious sexual offender, and this will be included in the court record.[14]
2. Every term of imprisonment imposed by a court on a serious offender for a relevant offence must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term.[15] However, the prosecution do not seek a disproportionate sentence, but protection of the community will become the primary sentencing purpose in your case.[16]
3. I have taken into account the relevant sentencing principles referred to in s5 of the Sentencing Act and also current sentencing practices for the offences to which you have been found guilty, as well as the important principles of totality and proportionality.
4. Despite your prior offending your community offered you forgiveness,

Mr Cunningham. Your opportunistic offending against this child breaches that forgiveness and, significantly, the trust placed upon you by her grandmother. In sentencing you today I must signal clearly to the community at large, but also specifically to you, that such offending will result in stern condemnation by the courts by way of the imposition of a significant term of imprisonment. Young children in our community must be protected against your future offending. This will be a relevant consideration when you reach the expiry of your non-parole period.

1. By virtue of your previous criminal record you have already been placed on the Sex Offenders Register for life. Nonetheless, sexual penetration of a child under 12 is a Class 1 offence, and sexual assault of a child under the age of 16 and sexual activity in the presence of a child under the age of 16 are Class 2 offences under the Sex Offenders Registration Act 2004 (Vic). Therefore, I am required to fix a further period requiring you to report under the Sex Offenders Registration Act for life.[17]

1. In conclusion, Mr Cunningham, I sentence you as follows:
2. On Charge 1; sexual assault of a child under the age of 16 - course of conduct, you are convicted and sentenced to two years' imprisonment.
3. On Charge 2; sexual assault in the presence of a child under the age of 16, you are convicted and sentenced to 12 months' imprisonment.
4. Given that the offending in Charge 1 and 2 involved the preliminary grooming of the victim, and to avoid a sentence which would otherwise be disproportionate, I order that the sentence in Charge 2 be served concurrently with that imposed in Charge 1.
5. On Charge 3; sexual penetration of a child under the age of 12, you are convicted and sentenced to five years' imprisonment. This will be the base sentence.
6. On Charge 4; sexual penetration of a child under the age of 12, you are convicted and sentenced to five years' imprisonment.
7. To fairly achieve the principle of totality and to avoid a disproportionate overall sentence, three years of the term imposed in Charge 4 is to be served cumulatively upon the base sentence imposed in Charge 3. Six months of the term imposed in Charges 1 and 2 are to be served cumulatively upon the base sentence. That is, the total effective sentence to be imposed on you this day is eight and a half years' imprisonment.
8. I impose a non-parole period of six years.
9. You are to be sentenced as a serious sexual offender.

1. Pursuant to s18 of the Sentencing Act the period of 64 days of pre-sentence detention, not including today, is hereby declared as having already been served in respect of this sentence and I order that such declaration and its details be entered into the court records.

1. Your obligations under the Sex Offenders Registration Act will be forwarded to you and your counsel Mr Thyssen will explain them to you after we conclude.

[1] Crimes Act 1958 (Vic), s49D(1)

[2] Ibid, s49F(1)

[3] Ibid, s49A(1)

[5] Regard is had in reaching this assessment to the conclusions of the Court of Appeal in McPherson v R [2021] VSCA 53 at [27] and [31].

[8] Sentencing Act 1991 (Vic), s5A(1)

[9] Ibid, s5A(3)

[10] Ibid, s5B(3)(a)

[11] Ibid, s5B(3)(b)

[12] [2021] VSCA 53

[13] McPherson v The Queen [2021] VSCA 53, [31]

[14] Sentencing Act 1991 (Vic), s6B(3)(c)

[15] Ibid, s6E

[16] Ibid, s6D

[17] Sex Offenders Registration Act 2004, s34(1)(c)