DPP v Lane [2017] VCC 555

2. At first you told him he could earn money by having his photograph taken.

That was quickly followed by telling him he could earn more money if he posed naked. In January of 1980 the victim came to your premises. You spoke to him in sexualised terms about his body and his genitals. As the adult you reassured the child that it would "be all okay" and "was not bad" to do what you were doing. Plainly you knew it was the exact opposite.

3. You removed his pants and touched his penis. You had oral sex with the boy who experienced his first orgasm in this sordid set of circumstance. You then made enticing promises that he would get a walkie-talkie. This was all part of your plan to get him to return so you could continue your abuse and exploitation.
4. Two weeks later the victim again attended at your caravan. You again touched and sucked his penis. You photographed him, telling him to stroke himself as you took your depraved photographs. You again said you would have his walkie-talkie next time he visited but he was not to tell anyone what you were doing to him.
5. Not long later in February 1980 you took the victim for a drive in your car and again indecently assaulted him by stroking his penis with your hand. This was followed by oral sex on the child. You then added the more degrading abuse by penetrating his anus with your finger.
6. The next weekend you photographed the victim having him masturbate until ejaculation. You photographed him with ejaculate on his stomach. On another occasion you took nude photographs of the victim on a boat on a nearby lake where you had taken him. Then throughout 1980 every few weeks the victim would come to your premises and you would perform oral sex on him and masturbate him.
7. Three incidents of masturbating the victim were charged as a single representative charge of indecent assault being Charge 1 on the indictment. Likewise three incidents of oral sex where charged as an indecent assault, as was the law in those days. They were representative charges. That is Charge 2 on the indictment. The incident of penetration of the victim's anus was charged as a single event of indecent assault, Charge 3.
8. In 1981 you asked the victim to invite a school friend to come to your caravan and earn money. It was plain this was to be by having him pose for your debauched photograph. The friend that the victim did bring was rejected by you for not being skinny enough. On another occasion early in 1981 the victim attended and there was another boy present. You then had the boys undress each other and pose for you while you photographed each boy performing oral sex on the other. You had them change positions but continued with requiring them to perform oral sex in turn on the other. You had each lie on the stomach with the other on top with his penis at the buttock of the other.
9. These circumstance only have to be stated for the depravity and the seriousness to be revealed. The conduct resulted in two charges of procuring acts of gross indecency.
10. In my view the gravity of each of these five charges is palpable.

The masturbation, the oral penetration, the digital penetration of a child's anus and at times to the point of ejaculation, all abuse on an 11 and 12 and 13 year old young child and all in circumstance where pornographic, exploitative photographs were taken reveals deep depravity. The securing of two young boys to perform acts on each other is truly abhorrent.

11. Ordinary members of our community would be bewildered that you could do such things to young children. The abuse of trust is significant, as is the conduct of stringing the victim along with promises of radio equipment such as the walkie-talkie. Your conduct was planned, predatory and persistent. Your moral culpability is very high. You knew what you were doing was base and wrong but you persisted and increased the seriousness in the sense of bringing another boy into what was your depraved behaviour.
12. The impact on the victim has been considerable. He travelled from interstate to read his victim impact statement. I will quote from his heartfelt statement as his words best express what he lost and how he feels. I pause at this moment to note that I have not referred to the victim by name. That is out of respect to him. There can be no publication of his name but I will use the term "victim" not out of disrespect but to the contrary, out of respect. He states in his victim impact statement:

"I was 11, almost 12, when this happened to me. I was full of happiness and a fun loving boy, like most boys that age. My favourite thing was pulling apart electrical items and repairing them. My happiness was lost after meeting this man. He was supposed to be a friend helping me with my hobbies but used me for his own satisfaction. He took from me something I can never get back, my childhood".

"I was so scared and withdrawn from what this man was doing to me. I was still wetting the bed at night at age 13. I was a good student at primary school as I enjoyed it but as things were still happening to me by this man I became angry, frustrated and isolated".

1. He speaks of the difficulties that he had at school with anger arising. He said, "As I became older I found I was not able to settle into a work place nor could

I settle into a proper relationship". He says, "I have had anger and confusion inside me all my life. Even now I find it hard to trust people". He writes:

"I lost out on completing my studies with both school and university. That would have been better for my career options now as an adult. I wanted so much in my life but I am what I am today because of what this man did to me".

1. He says that "I feel now I am alone going through my adult life. I will never recover from what this man did to me".
2. As required by the Sentencing Act I have taken into account the significant adverse effect of your crimes on the victim. These matters also add to the gravity of your crimes. As I will expand on further you have responded to the victim impact statement in writing, a letter tendered on the plea. In your response there is expressed by you, remorse and concern for the victim. Before moving to expand on matters put forward in mitigation I need to deal with your other relevant serious offending behaviour.
3. The victim in this case and indeed the other unknown victim are not the only ones who suffered sexual abuse at your hands in and around those years.

You were not caught and dealt with for any other matters before this offending and in that sense these other crimes are not prior convictions. They are, nonetheless, important in the sentencing synthesis.

4. In 1996 you were sentenced for 14 like charges of sexual offending against young male victims. The offending occurred between 1967 and 1977. Ultimately on appeal to the County Court from a Magistrates' Court sentence you received a 12 months sentence of imprisonment, six months of which were suspended for 12 months.
5. On 22 January 1988 you were convicted of six charges of indecent act on a male, one charge of buggery and four charges of indecent assault and on charge of common assault. These offences occurred between 1970 and 1988. You were sentenced to three years and six months with a non-parole period of 15 months by Judge Crosley of this court. During the currency of that sentence you were charged with offences involving two of the same victims which occurred in New South Wales. You were sentenced in New South Wales in 1988. The details are not clear to me about that.
6. On 11 December 2006 you were convicted of four charges of indecent assault on a male person and were sentenced to 18 months which was wholly suspended for two years. The final sentence was imposed by Judge Hannan of this court and I have had the benefit of her sentencing remarks. The offences were committed between 1972 and 1974 on two young males. They appear to me to be opportunistic in the sense of driving the victims and touching them while they were in the car. Although one of them on was on trip where you stayed overnight.
7. Thus on any analysis you were a serial sex offender sexually abusing young boys from approximately 1967 when you were just 21 years old up until 1988 when you were in your 40's. For a good deal of this time you were a trusted member of the community as a police officer. This other relevant and serious offending cannot be overlooked.
8. Your crimes that are before me reveal planning with photographic equipment at the ready. There were elements of cunning as you worked on the victim's childlike interest to keep him coming to see you and you used your power over him to emphasise that he must keep the sexual abuse a secret which he, in fact, did for over 30 years. The other offences exposed that your sexual depravity and abuse of trust were ingrained behaviours.
9. Another aspect of your other offending is that by reason of the serious offender provisions of the Sentencing Act you are to be dealt with as a serious sexual offender for each of the five charges before me, that is if I am to impose sentences of imprisonment for those crimes. No-one suggests that a penalty less than imprisonment is appropriate.
10. The ultimate submission made by your counsel was that the sentence of imprisonment for these five charges on this indictment ought be wholly suspended. The basis for this submission was what was said to be the catalogue of powerful mitigatory matters that could be put forward and were put forward on your behalf.
11. The central plank of the matters in mitigation is that you developed during your terms of imprisonment insight into your offending and its dreadful impact on your victims. Your insight led to deep and continuing remorse. This was the motivation for you undertaking and absorbing the lessons of sex offender programs run in prison and in the community. You developed practical responses to what you recognise as your abhorrent and risky sexual orientation. You have been able to moderate and deal with what you know to be your abhorrent sexual tendencies. You have been able to remain free of offending conduct since, it seems to me, 1988 or 1989. It is said that, in short, you have reformed. Thus there is little, if any need for specific deterrence to you which would have once loomed very large. Also there is no need for emphasis to be given to protect the community especially young boys from you as you are no longer a risk.
12. I have read carefully the report of experienced forensic psychologist, Mr Joblin, who saw you in 1996 and again in early 2017 and provided a report dated March 2017. Also I have considered carefully the testimonials of those that know you well in the small community in which you now live. The evidence before me of Associate Professor Brook Cardin was very impressive. I accept his evidence that from your release from prison in 1999 you returned to your community

13. You developed skills as a business case writer in prison and have used your abilities and skills for the benefits of those at the margins in our society especially in remote indigenous communities. This is very much to your credit. You have been a long term and generous friend to the late Mr Whittington,

a neighbour in your small town. You continued that in your considerable support of his widow who, herself, of late is very ill and reliant on you on a day to day basis. There is no doubt that you have many impressive qualities as you present now in 2017 before this court as a 70 year old man facing up to what you did 37 or 38 years ago to two small boys.

14. As the Court of Appeal has said I cannot, and I emphasise, I do not give mere lip service to these mitigatory matters because the offending here is so serious and abhorrent. Your own letter in response to the victim impact statement expresses genuine remorse and acceptance of responsibility for what harm you have done. Like Mr Joblin I am optimistic about your prognosis. I expect you will continue to live a lawful and generous life well into the future. Little needs to be done to further facilitate your rehabilitation.
15. I have considered whether your support for Ms Whittington, your neighbour, is such that it meets the test of exceptional circumstance allowing for some mitigation of your sentence because of the harshness it may cause to her. Having reviewed the authorities I do not consider, on the evidence, that I have, that the circumstance here reach the high test of exceptional circumstances.

I do not discount what you provide to her and I weigh it in your favour your efforts to make her last days comfortable.

16. I do consider that the delay in this matter operates as mitigatory. The investigation and the prosecution have taken a long time and has weighed upon you during that time.
17. You pleaded guilty at an early point and as such your plea will receive significant weight in mitigation. It saved the victim the added trauma of giving evidence. It has significant benefits to your community that you took responsibility for your crimes committed decades ago.
18. I take into account for the offence before Judge Hannan you received an 18 month sentence wholly suspended. You did not act in any way to cause

a breach of that sentence. Conduct on any previous suspended sentence is

a factor I must consider in determining the question that's set out in the relevant part of the Sentencing Act which was at the time is it desirable to suspend a sentence of imprisonment?

19. By other requirements of the statute, I must also consider the gravity of the offences, the need for deterrence and the impact of the crimes upon the victim and whether those matters would be adequately met if the sentence was suspended. These matters that I have mentioned are all relevant to the primary question of what is the just and appropriate sentence in light of all the sentencing purposes, in particular denunciation, deterrence especially to others, your rehabilitation and the primary sentencing consideration of protection of the community given that you are a serious sexual offender.
20. I must respect those parts of the serious offender provisions and not overlook parliament's intent that sentences for multiple crimes be cumulative unless otherwise ordered. That said I do not simply ignore the principle of totality.
21. The maximum terms for these offences are five years for the indecent assault and two years for the procurement offences. The maximum term is in an important consideration. I have kept these terms well in mind. I have applied the principles articulated by our Court of Appeal in Starlio v R in respect of dealing with offending that is decades old. Each case and each offender is to be considered in light of the unique facts that arise. The value of comparing your case to others is limited to an understanding of what are the broad yardsticks of sentences for these sorts of crimes.
22. I note that imprisonment has been imposed for a single weekend of sexual offending by a football coach on two boys under the age of 12 which involved fondling their genitals and having them fondle the adult offender's genitals.

The sentence of three years with a minimum of two years was held by our Court of Appeal in 2011 to be within range. The crimes were decades old.

23. More recently in Morris v R the Court of Appeal determined that a sentence of six years with a minimum of four years was within range for a school teacher who fondled the genitals of six students and had some of them touch him.

The offending spanned six years or so. The accused in that case also had a non-conviction bond imposed for like offending in the 1980's. After that court appearance that accused left teaching and made a career in public service.

He lived without blemish thereafter and had much support and evidence of good qualities for many years. It was accepted that he was remorseful, took responsibility and was a man of low risk of re-offending.

24. Of course, as a teacher and by reason of the methods that are used his offending was, in some respects, more serious than here. But that said he engaged in fondling not sucking the victim's penis, masturbating to ejaculation, digital penetration of the victim's anus nor having young boys engage in oral sex for photographs and perverse gratification that occurred in these circumstance, the offences committed by you. All this committed by a man who, at the time, and for it seems about two decades was committing many sexual crimes against young boys.
25. The latter case reveals the broad yardstick set by the Court of Appeal in very recent times for sexual offending against young children committed decades ago by men who have reformed and the yardstick is terms of imprisonment beyond that would allow for suspension of any part of the sentencing.
26. In my view, in all the circumstance, the need for denunciation of your dreadful offending must be expressed in a practical term by the sentence I impose not just in my words. Deterrence to others minded to abuse young vulnerable children must be clear and importantly consistent. As the High Court made plain, deterrence in the criminal law is achieved through the certainty of detection and consistency in sentencing. I must give primacy to the protection of the community. But here I again say your rehabilitation is well forged and your risk is low.
27. I must mark your different forms of offending and the second victim in the procurement offences and I must do so by order for cumulation, respecting the serious offender provisions of the Sentencing Act in a balanced way.
28. Sentences of imprisonment are inevitable. The question is in the end is the total just and appropriate sentence one such as to allow for suspension of all or part of the sentence and if so, is it desirable to suspend the sentence? In my view, given your reform, remorse, good works, low risk, that it is within the proper discretion for me to suspend some, but not all, of the sentence of imprisonment that I am about to announce. Grave as it always is, in my view,

I have no other option but to order you to be imprisoned for a period of time.

29. I have not ordered full cumulation because to do so would result in a crushing sentence and a sentence more akin to an outlier. However the orders for cumulation are to give effect the different crimes to victims and the parliament's intent that you must be dealt with as a serious sexual offender, that is, treated differently to ordinary offenders. Can you please stand, Mr Lane.
30. Doing the best I can in respect of Charge 1 you are sentenced to 12 months' imprisonment. In respect of Charge 2 you are sentenced to 18 months' imprisonment. Charge 3, you are sentenced to 12 months' imprisonment. Charge 4, you are sentenced to 12 months' imprisonment and Charge 5 you are sentenced to 12 months' imprisonment.
31. I order that four months of Charge 1, four months of Charge 3, five months of Charge 4 and five months of Charge 5 be cumulative upon each other and cumulative upon the base sentence of 18 months that I fixed for Charge 2.

That brings a sentence of three years. I order that 18 months of that sentence be suspended for a period of three years. The order is that you are to be imprisoned for 18 months and then released being on a suspended gaol term for a further 18 months.

32. Had you pleaded not guilty to these offences and been found guilty of them

I would have imposed a sentence of five years with a minimum of three years.

33. By operation of the serious offender provisions of the Sentencing Act I declare that you are a serious sexual offender for Charge 1, 2, 3, 4 and 5 and I will ensure that this declaration is entered into the records of the court. I have been informed that you are registered on the Sex Offender's Register by reason of other offending in 2006 and I do not need to make any further order in respect of the Sex Offender's Register.
34. There being no days served in custody there is declaration pursuant to s.18.

35. MR NIBBS: No, Your Honour.
36. MR ELLINGHAUS: No, Your Honour.
37. HIS HONOUR: Thank you. Mr Lane, this court is not set up to allow for any exchanges with anyone in the court house. Mr Ellinghaus will no doubt be able to see you shortly so you must go with the authorities now. Thank you. Exhibit 10 is Ms Whittington's original
38. MR ELLINGHAUS: Sorry, Your Honour, I didn't hear that?
39. HIS HONOUR: Exhibit 10 is the number of Ms Whittington's letter.
40. MR ELLINGHAUS: Thank you.
41. HIS HONOUR: All right. I thank counsel and in particular Mr Hayden for his considerable assistance in this matter. Thank you. I'll just stand down until the next case is called.