DPP v Jacobs

1. Three victim impact statements were tendered and read by the prosecutor on the plea hearing.
2. Firstly, Imogen says that she feels sick remembering your touch and it makes her want to scrub her skin off. She says she feels 'dirty' and 'taken advantage of' and that no child should go through what she went through. She said that day in the caravan showed her who you really were.
3. Hannah Brown said she felt ashamed not speaking up as a child when this was happening. That is an understandable feeling, but she should not feel that way because the responsibility is entirely on you. She felt she would get in trouble if she said anything. She says she feels manipulated and abused. She says from a young age she became sexually aware. She did not know how to deal with the trauma, and that led to complications in her relationships as she got older. She said the trauma impacted her school years badly and she became numb and depressed. She is also triggered from time to time when circumstances remind her of your offending against her.
4. Elliot Brown, in what I would describe as an insightful and eloquent victim impact statement, says that when he found out or he was told by his daughters what had happened, his world fell apart, and he saw their childhood vanish before his eyes. He says that you did not just abuse their bodies, you stole their innocence, their sense of safety, and their ability to look back at the world with wonder, and that is something that can be never given back to them. He lives with a deep sense of guilt on the basis that he should have protected them. He, like others, trusted you, but he says he should have seen the signs. He said that since the abuse came to light, nothing has been the same. He says Hannah, Imogen and he struggle to sleep at night. He says you broke something sacred: the bond between a child and the people who should have protected them most, and that they are still trying to pick up the pieces. He says this:

'this man destroyed our family, he turned birthdays, holidays and every memory that should have been warm, into a reminder of trauma. His actions have left scars that will last a lifetime'.

1. The maximum penalties, which I have outlined, reflect the seriousness of the offences in this case. The community rightly regards sexual offending against children as abhorrent and ordinarily a substantial sentence of imprisonment with a non-parole period is the outcome, particularly where the mitigatory benefits of a plea of guilty such as remorse, closure to the victims, and avoiding the need for them to give evidence are not present.
2. Such offending causes enormous emotional and psychological harm to victims and those close to them and that is evident in the victim impact statements of Hannah, Imogen and their father in this matter. The harm that you have caused informs the need for just punishment in deciding the appropriate sentences but, of course, the impact on the victims must not be allowed to swamp all other relevant matters related to sentencing in this case.
3. Sexual offences are generally considered more serious the younger the age of the victim. In this matter Hannah was just 10 or 11 at the time of the charged act and Imogen was also young, between the ages of 13 and 16.
4. This offending involved a very significant breach of trust. You were the victims' grandfather and consequently you were allowed to be alone with them because you were a family member. You should have had a protective instinct towards them but instead you profoundly breached the trust by committing serious sexual acts against them.
5. The prosecution emphasised various aspects of Charge 1 including:

(a) that you deliberately entered the room where children were playing;

(b) that you placed your hand over Hannah's mouth to prevent her from speaking;

(c) they characterised the penetration of her vagina as occurring over 10 to

30 seconds, (she described it as a short period); and

(d) that you then left without explanation, as if nothing had taken place.

1. Based on those facts, the prosecution described this as a brazen and calculated act of sexual assault against a very young child, in circumstances where she was vulnerable because of her young age; the familial relationship and the trust placed in you. Furthermore, she was vulnerable because of the isolated setting (in the darkened room); and the fact that you silenced her by putting your hand over her mouth.
2. In relation to Charge 1, your counsel, Mr Barton, submitted that your moral culpability for this offence is reduced given that it only occurred on one occasion. There is no evidence of other penetrative conduct outside this event, so it can be said this was an isolated incident of penetration. However, there is certainly other evidence of sexual assault activity towards Hannah, so it cannot be said this was an isolated incident of sexual abuse towards her and the significance of this being an isolated incident of penetration is, therefore, limited.
3. In relation to Charge 2 of sexual assault, the prosecution emphasised that you held the victim, Imogen, down with your arms around her waist; you attempted to kiss her neck and lips; and put your hands underneath her T-shirt; and that you continued this conduct despite her resistance and her requests to stop. The evidence does show that she was only able to escape you by physically resisting and then running away. The prosecution submitted, and I accept, that the facts of this matter demonstrate you were prepared to disregard her obvious unwillingness to participate in this conduct; not that some form of compliance would necessarily have been a mitigating factor in relation to a child of her age. This was a sexual assault offence where the prosecution was required to prove consent. There was no consent and that was demonstrated by the evidence.
4. This offence was not an isolated incident. You are not to be punished for uncharged conduct, but the context of the offending was that this was a specific incident occurring against a background of ongoing sexual assault. I have already described the other evidence.
5. I accept the prosecution submissions as to the level of premeditation in this offending; the vulnerability of the victims, the gross breach of trust; and that you exploited your relationship with the victims.
6. You are not to be punished for running a trial. That is your right. However, the mitigatory benefits associated with a guilty plea are not available to you.
7. There is nothing before me to indicate reduced moral culpability. The victims in this case were your granddaughters, and you deliberately sexually abused them for your sexual gratification. Your drinking, about which I have not been given much information, does not mitigate your culpability. In my opinion, your moral culpability for this offending is substantial.

1. Your counsel, Mr Barton, raised your prior good character. You have no prior convictions. The absence of prior convictions is of some significance in sentencing in this case, but the ongoing sexual assault conduct demonstrated by the evidence does cut across claims of good character and its significance in sentencing in this matter. Moreover, offending such as this is routinely committed by people without prior convictions.

1. Mr Barton set out your personal circumstances. You were born in 1953 in Holland. You have an older sister and three younger brothers. You came to Australia at the age of eight in 1961. Your family settled in Wandin North in the Warburton Valley. You went to school in Lilydale and then Mooroolbark Secondary College.
2. Your first marriage produced two children; that marriage failed. Caitlin Jacobs Spencer is a granddaughter through one of the children of your first marriage.
3. You married Jessica Jacobs in 1985. Before I remanded you in custody after the verdict, you were living with Jessica and your son Riley in Hampton Park.
4. You were employed all your adult life before retirement. You left school in

Year 10 and undertook a cadetship with the SEC. You then worked as a linesman for the power grid. You worked in that employment for 20 years. After you were self-employed as an air-conditioning technician. You retired in 2020 at the age of 67. I was told you used the balance of your superannuation to pay for the house in Hampton Park. 5. Your main recreation is fishing. 6. Mr Barton described you as an 'isolated' person. I understood him to mean by this that you are not a social person at all, and you prefer your own company. 7. You have had some health challenges. Your prostate was removed approximately a decade ago and you suffer from incontinence. You also have high blood pressure. My understanding is you take medication for both of those conditions. I take into account that your health could accentuate the burden of your imprisonment at some level, and that you are an older person and that this sentence is your first experience of imprisonment. I am satisfied that the sentence I impose will weigh heavily on you.

1. It is difficult to assess your prospects of rehabilitation, given your ongoing denial of the offending against the grandchildren. Your offending occurred in the context of alcohol consumption and because you had access to your granddaughters. Given the length of the sentence that I impose, it may well be unlikely that you will have the opportunity to be around young or teenage female children again, but I do not know that to be the case. In these circumstances, I can only say that your prospects of rehabilitation are uncertain. In coming to that view, I have taken into account the nature and gravity of the offending in this case, and the absence of any evidence or remorse or insight.

1. The charges in this case were filed in June 2022. The matter came into the County Court jurisdiction in late 2022, or perhaps a little earlier, when the committal proceeding proceeded. The committal proceeding went through the Magistrates' Court. For a variety of reasons, that are not your fault, the trial in this case did not take place until this year. The principal reason for the delay in this case was the Court of Appeal decision in Smith[9], which was a case where the judge, together with counsel, visited the complainant at the Child Witness Service before the special hearing. In Smith, this was held to be impermissible by the Court of Appeal. All the trials which fell into that category, as this did, were then delayed until those issues were decided by the High Court. Once that happened, this matter was relisted for trial.
2. This delay was substantial, and it cannot be attributed to anything you did, other than to exercise your rights. Therefore, I take into account the fact that you have had this very serious matter hanging over your head for approximately three years, and that two years of that delay, was attributable to delays in the court processes. This has been an additional burden on you. These were serious matters which involved the prospect of significant imprisonment.
3. Both the prosecution and the defence agree the only appropriate sentence in this case is a head sentence with a non-parole period. There is no other option, having regard to the gravity of the offending in this case.
4. In sentencing you for this matter, considerations of general deterrence, denunciation and just punishment must be emphasised. Specific deterrence and community protection also have a role to play in deciding the appropriate sentence, although, given your age and the absence of prior convictions, the weight to be given to these principles is somewhat reduced.
5. I must also, as best I can, consider your rehabilitation and how that can be facilitated.

1. The totality principle requires that the total effective sentence be proportionate to the overall criminality of the offending. To achieve that in this case, it is necessary to moderate the cumulation for the offending against Imogen, but the offending against her was separate conduct and has caused separate damage to her, which must be recognised by not insignificant cumulation.

1. The non-parole period is the minimum period justice requires you to serve before becoming eligible for release. The non-parole period mitigates punishment in favour of rehabilitation, but it must be consistent with the objective gravity of the offending.
2. I have regard to the need to promote your rehabilitation, in particular, in fixing the non-parole period in this matter.

1. The sentences that I imposed in this matter are as follows.
2. On Charge 1, you are convicted and sentenced to be imprisoned for a period of four years and 10 months.
3. In relation to Charge 2, you are convicted and sentenced to be imprisoned for a period of 20 months.
4. I order that 10 months of the sentence on Charge 2 is to be cumulative on the base sentence for Charge 1. That makes a total effective sentence of five years and eight months.
5. I fix a non-parole period of three years and six months.
6. I order the 30 days of pre-sentence detention is to be deducted from the sentence that I have imposed.
7. I make an order under the Sex Offender Registration Act for life. Documents relating to that will be provided to you. You can be seated. You can sign the documents once they are provided.
8. The Sex Offender Registration orders are mandatory, in the circumstances a class 1 and a class 2 offence.

[7] Noting the amendment to the time frame that was made during the trial in relation to Charge 2.

[9] DPP v Smith [2023] VSCA 293