DPP v Partington [2017] VCC 1540

3 The prosecution filed a Summary of Prosecution Opening dated 10 August 2017, which I am told by your counsel I can treat as a statement of agreed facts.[5]

4 The offending occurred over two periods, separated by about seven years. The first occasion was between 28 August 1973 and 27 August 1974 and the second occasion was between 1 June 1981 and 30 June 1981.

5 You were born on 4 December 1940 and were a gymnastics coach at a gymnastics club in Melbourne when the offending occurred. At the time of the offending on the first occasion you were 33 years old, and you were 41 years old on the second occasion.

6 The first victim in this matter, Jessie Jackson[6] was 12 years old at the time of the offending. She was your student at the gymnastics club.

7 The second victim in this matter, Ashley Martin[7] was 14 years old at the time of the offending. She also was also your student.

8 In approximately 1968, when Jackson was aged 7 years old, she commenced gymnastics training with you.

9 Training occurred several times a week at a sports hall at a secondary college and occasionally at your home after school and on weekends. Training at your home could include up to six gymnasts and other adults were sometimes present. Gymnasts occasionally slept at your home overnight.

10 Sometime in 1973-74, when Jackson was 12 years old, she received an invitation to attend training at your home on Friday nights. Friday night training was for the best gymnasts and training on this particular day was deemed a privilege.

11 Jackson stayed overnight at your home on two occasions. On the second occasion, arrangements were made for her and another gymnast to stay the night at your home so they could select music for Jackson's gymnastic floor routine in an upcoming competition.

12 At some time in the afternoon, Jackson was taken to your home. She noticed that the other gymnast was not there, and when she asked you where the other girl was, you laughed and said that she was not coming. There was no one else at your home.

13 At some point that evening, you and Jackson were sitting next to each other on the couch in the lounge room. You were listening to music and without warning, you put your hand up Jackson's jumper and onto her breast. Jackson froze and did not move. You left your hand there for a while before removing it and saying, "I'm sorry". This is part of the conduct relied upon by the Crown to support Charge 1.

14 Soon after, while still on the couch, you persistently asked Jackson to go to bed and sleep with you in your bed. As you would not take "no" for an answer, Jackson eventually agreed, provided the two of you did not share a sleeping bag. You were to sleep in your own sleeping bag.

15 Jackson got into your bed, under the blankets and you lay next to her, in your sleeping bag. The bed was at least a double bed in size.

16 Jackson recalls that throughout that night you continued to indecently assault her. She gave police the following description of the events of that night:

(a) "He rubbed his groin against my hip and leg. This occurred throughout the night and many times. The accused was in his sleeping bag when he did this and I don't recall if he was erect".

(b) "He mounted me several times and lay on top of me face to face. He was talking but I don't recall what he was saying and this occurred several times".

(c) "While still on top of me, he tried to kiss me and at some stage, he forced his tongue into my mouth. I tried to repel him but he was too heavy and strong".

(d) "On several occasions, he put his hands under the blankets and onto my nighty trying to force it off me. He was saying things along the lines of convincing me to take it off".

This is all part of the conduct relied upon by the Crown to support Charge 1.

17 Jackson recalls: "I was holding onto my nighty and blankets the whole night trying to fight him off. This went on for hours and felt like it was the whole night".

18 Jackson does not recall how the abuse ended. The next morning you brought her a glass of orange juice and apologised.

19 Jackson remained at your house that day and participated in a trampoline session with other gymnasts. She felt sick and embarrassed because of the lack of sleep and the offending conduct you had perpetrated on her.

20 After the incidents, Jackson continued to train with you and did not tell anyone because she was "too frightened to tell anyone what had happened thinking no one would believe [her] and [she] would get in trouble and would not be able to do gymnastics anymore".

21 Jackson stopped training with you in 1975-6 and stopped all training when she was 17-18 years old.

22 Jackson disclosed the offending to her mother when she was 21 years old.

23 In approximately December of 1977, Martin began training with you at the gymnastics club.

24 Sometime in 1979, she started to train at your home. She trained at your house about twice a month and there were usually from four to eight other students there. She also stayed overnight approximately five times. You had a bedroom set up with bunk beds.

25 In June 1981, you arranged for Martin to attend your home for a sleep over. When Martin arrived, she noticed that no other gymnasts were present. When she asked you about the other gymnasts, you said that your daughter, Robin, was supposed to attend but could not make it. This forms the basis of the prosecution case that Martin was under your care, supervision or authority at the time of the commission of Charge 2.

26 Martin explained that she did not call her mother and ask to be picked up because: "Graham was like as second father to me - he understood my dream for gymnastics excellence in a way that my own parents didn't".

27 At some point later that evening, while you were sitting on a lounge chair, you tickled Martin on the chest and upper thigh. She told the police: "the tickling was nothing new. Sometimes Graham would tickle two or three of us on the sofa ... This was the first time he'd tickled me when I was alone in his house".

28 Later that night, Martin went to bed in the spare room. The room did not have a door. She was still awake when you entered the room and the two of you spoke. You then invited Martin to sleep in your bed, to which she agreed.

29 Martin followed you to your room and when you arrived, you told her to take off her clothes. Martin took her clothes off and got into bed under the sheets. You joined her and after chatting for some time, began to touch her breasts, ran your hands over her stomach and caressed her pubic area and inner thigh.[8]

30 Martin's next memory is of you being suddenly on top of her and breathing hard. She said: "I also recall his heavy weight on me ... and feeling pinned down and overwhelmed".

31 Martin recalls: "He struggled to get his penis inside me, and I was wincing with pain ... the next thing I recall is a tearing pain in my vagina as his penis entered ... he continued to thrust back and forth hard". Martin states she did not say anything and was holding her breath to cope with the intense pain. You ejaculated and then fell back onto your side of the bed. This conduct gives rise to Charge 2.

32 When Martin lifted the sheets, she saw blood and a damp spot, and asked you what it meant. You said: "blood was normal for the first time and that [she] shouldn't worry about it".

33 Martin went back to her own bed. The next morning you had breakfast together and she eventually went home. She did not disclose the offending at this time.

34 After the offending, Martin was concerned that she may have become pregnant as a result of the sexual penetration by you, however a few weeks later she realised she was not pregnant.

35 After the offending, Martin continued training with you. During training, you approached Martin when she was alone in the change room. You said you needed to meet again and you wanted to take her for a ride in your car. You said: "I'll pick you up, we'll do some things and then I'll drop you home". It was arranged for you to pick her up after school.

36 One day soon after this conversation, when Martin was still aged 14 years old, you picked her up from school at a pre-arranged meeting point. You then drove her to a secluded area in a Melbourne suburb.

37 At some point, you removed your penis from your pants and told Martin to put it in her mouth. You guided her head down onto your penis and kept your hand on her head whilst she performed fellatio on you. Martin recalls she felt a "vomiting and gagging sensation". This gives rise to Charge 3.

38 Martin thought you had ejaculated and has no other recollection of the incident other than being driven to the bus stop. When Martin arrived home, her mother thought something was wrong. When her mother questioned her, Martin did not disclose the offending.

39 Martin continued training with you for a short time after this incident.

40 When Martin was approximately 17 years old, she disclosed the offending to her boyfriend at that time.

41 On the 22 June 2016, Martin conducted a pre-text conversation with you. During this conversation, you apologised for your actions and said:

(a) "it was not right ... well, with hindsight that would not be right";

(b) "ashamed. I think ashamed because I mean it's a scar";

(c) "and I was such a sort of father figure to them ... figurehead";

(d) "oh dear [Ashley], you bring back an unsavory episode then";

(f) "you can't make excuses for weakness, it's a character flaw ... a stupid episode ... moments of weakness";

(g) "It's a pity that the other gymnast, whoever was supposed to come over to our house didn't at the time. But I didn't have too many episodes where that - well, I didn't have any other episodes actually";

(h) "your mum and dad, you know, they invited me into the house ... and [I] betrayed that trust";

42 Police began to investigate your actions in early 2016 after receiving a referral from the Royal Commission into Institutional Responses to Child Sexual Abuse. Police contacted Martin and Jackson, who disclosed the offending. Jackson provided a statement to police on 23 May 2016. Martin provided her statement to police on 22 June 2016.

43 On the 1 September 2016, you were interviewed at a police station in Queensland. In relation to your role as a coach, you said:

(a) "all gymnasts - you are a father figure ... a teacher, coach, mentor ... position of trust";

(b) "all teachers are put on a pedestal by their students ... so all the students can be infatuated"; and

(c) that the top gymnasts often went to [your] house to train on weekends and some stayed overnight.

44 In relation to the offending against Jackson, you said:

(a) Jackson was one of your students who often trained at your house, and you believed she stayed overnight.

(b) Jackson would have been 12 or 13 years old at the time. and

(c) When the specific allegations were put to you, you stated you had no recollection of the offending.

45 In relation to the offending against Martin, you said:

(a) Martin was one of your students and recalled she stayed ... overnight once.

(b) "I was guilty of a transgression against [Ashley] and ... just expressed remorse ... bad behaviour on my part".

(c) "[Ashley] was one of my gymnasts and we shared a lot of time together in terms of ... training ... and unfortunately one night she was at my place for training and one thing led to another ... bad memories of it now".

(d) Martin would have been 14 or 15 years old at the time.

(e) "I'm not quite sure how [Ashley] was by herself, 'cause I'd assume that maybe my daughter or somebody might've been coming too ... can't remember why she was there by herself".

(f) When asked to explain exactly what occurred with Martin, you said you could not recall the exact details, but did recall that you and Martin got into bed together and that you were unsure whether she undressed and hopped into bed and "we may have been intimate".

(g) However, you did recall it occurred in the master bedroom at your house.

(h) Later, you said: "I'm the older person so I don't want to incriminate [Ashley] because I'm the one who went ... wrong ... there's no excuse".

(i) When asked what you meant by 'incriminate' Martin, you said: "she may have been infatuated with me ... but I'm the guilty person ... it's not really fair for [me] to be saying that [Ashley] is the one at fault because I'm the one at fault ... I'm not saying she was, I'm saying its possible she was ... because I was her coach .... and training involved personal touching ... but not meant to be sexually [ex]plicit".

(j) When asked if you were infatuated with Martin, you said: "possibly, because being a young attractive gymnast ... the mutual thing goes both ways". In my view, there is a degree of transferring the blame for the offending onto the victim contained in this statement.

(k) "I'd call it a transgression ... why we got involved in that I really can't say what led up to that ... it was just the training environment I suppose and the closeness, the proximity ... it's not a nice time now to reflect back on it."

(l) When you said you "transgressed", you thought you had probably engaged in sexual intercourse.

(m) You had no recollection of the second incident in your car.

(n) You did pick up students and take them to training, so you may have picked up Martin, however you did not think it was pre-arranged.

(o) After having spoken to Martin, you thought: "I must've picked her up from school, brought her home ... I must've fondled her or [we] fondled each other ... I'm still the older person so I'm at fault".

46 I received in evidence two Victim Impact Statements. One from Ms Jessie Jackson, dated 22 August 2017,[9] and one from Ms Ashley Martin, dated 30 May 2017.[10] Ms Jackson bravely read her Victim Impact Statement in open court. She noted that you were trusted by her and her family and you were considered to be one of "the family". Ms Jackson said "the event brought on consistent nervousness, loss of self-esteem and isolation as I withdrew from friends and family. My schooling suffered, and I suffered bulimia at the age of 13, which I supressed, I told no-one." She said in her Victim Impact Statement that at the age of 19, after years of supressing her shame, she finally had the courage to speak up and tell her mother what had happened to her some seven years' before. Ms Jackson said that she never forgot the damage inflicted upon her by you and that coming to Court today to speak of her experience had given her closure. On behalf of the Victorian community, I thank Ms Jackson for her courage in presenting her Victim Impact Statement and express the fervent hope that she has, indeed, gained closure from this experience.

47 So far as Ms Martin's Victim Impact Statement is concerned, at her request, it was not read aloud in open court. I have taken its contents very much into account in assessing the impact of your offences on Ms Martin and the devastating and continuing consequences for her resulting from your offending conduct. Her Victim Impact Statement is a comprehensive and very moving dissertation on how historical child sex assault can have such profound and long-term effects on its survivors. Because of some of its contents, and at the request of Ms Martin, I direct that her Victim Impact Statement be marked "Private and Confidential" and kept in a sealed envelope on the court file, until such time as it is returned to the Office of Public Prosecutions.

Partington's gymnastics club became like my second family: the seniors like older sisters, Partington as the father figure and his house the locus of domestic fun, a place where we'd go to train, cook, eat, sleep and dream. I was excited by Partington's interest in me, which intensified over the years. Intimacy with him meant I was a good person, worthy of his attention. When I found myself, aged 14, alone in his house, I saw it as proof I was special. I didn't regard his first assault as rape, downplaying it merely as a 'sexual encounter' the dues paid to keep his affection.

49 Later in her Victim Impact Statement, Ms Martin said that the offending conduct by you drove a wedge between her mother and herself:

It halted the normal process of emotional maturation between mother and daughter. It allowed distrust to flourish. My heart hardened against her. Since my disclosure to her was only recent, there's still a lot of restorative work to do.

50 She also said that the sex abuse had "... re-routed [her] way of thinking. Being too emotionally attached to people was dangerous". Later in her Victim Impact Statement she said:

Until I began to get professional help, I was unable to find a direct line to my emotions, express them authentically and articulate my innermost needs to others. The barriers weren't just saving me from being hurt by others - they were preventing me from being intimate with my most authentic self.

51 In the ultimate paragraph of her Victim Impact Statement's section on "Emotional impact of the crime", Ms Martin says this:

Disclosing all the intimate details of the HCSA to a therapist was highly distressing and induced a lot of grief and shame ... The process of securing Partington's confession provoked enormous anxiety, but I now have closure on a highly traumatic aspect of my past. While I still have a way to go in therapy, seeing Partington brought to justice feels like an instance of renewal. I now look forward to enjoying more intimate, fulfilling relationships with family and friends. I am finding new ways to restore my sense of integrity. I am also looking forward ... to living a calmer, more authentic life.

52 The reference to your "confession" is a reference to the pretext conversation conducted by her with you on 22 June 2016.

53 Once again, on behalf of the Victorian Community I thank Ms Martin for coming forward, for the expressions of how these offences have affected her in her Victim Impact Statement, and once again it, is my fervent hope that this curial proceeding can provide some closure to her.

54 The Victorian Court of Appeal has recently affirmed the important role of restorative justice in the criminal justice system. In Talbot (a Pseudonym) v R[11] the court said this:

The matters personal to the applicant must be balanced against the interests of the community and the victims. In DPP v DDJ,[12] Maxwell P, Vincent and Neave JJA quoted with approval the earlier statement of Vincent JA in DPP v Toomey[13] concerning the notion of social rehabilitation.

It is well to bear in mind that the rehabilitation of the victim of sexual abuse may often be more difficult to achieve than that of the perpetrator. Frequently the damage will be profound and a long time will pass before it can be addressed at all. In the meantime, childhood will be destroyed, self esteem damaged, educational and career opportunities lost and the capacity to form and maintain relationships seriously impaired. The notion to which I have adverted underpins, I believe, such concepts as restorative justice, just punishment, the vindication of rights and the attribution of responsibility based on moral culpability. The vindication of the victim in cases of this kind, in particular, is profoundly important if the criminal justice system is to perform its role properly.[14]

55 It is clear from the heartfelt expressions of great emotional suffering and grief contained in both Victim Impact Statements that your victims have had their childhood destroyed, their self-esteem damaged, educational and career opportunities reduced and the capacity to form and maintain relationships seriously impaired. Accordingly, there is a component of the sentence I impose on you which vindicates the victims in this case, and should, in some measure, help them to receive closure.

56 Sexual offending by adults against vulnerable children is a scourge on our society. Offending of this nature is regarded by the courts as extremely serious and usually calls for the imposition of condign punishment. The Victorian Court of Appeal, and its predecessor, have emphasised, on numerous occasions, the harm that sexual offending against children causes to the innocent victims and the community at large, and that such offending calls for condign punishment.[15]

57 In Browne (a Pseudonym) v R,[16] Justice Robson said:

The courts have recognised that, in sentencing for historical offences for child sexual abuse, general deterrence assumes significant importance as a sentencing factor. The court may and indeed should denounce such conduct in order to preserve the community standards which should serve to protect children.

58 In Director of Public Prosecutions v Toomey,[17] the Victorian Court of Appeal outlined the applicable principles as follows:

The courts have recognised that those who commit crimes against one of the most vulnerable groups in society, which almost invariably have long-term effects on their victims, should be severely punished.

Addressing the relevance of delay between the offending conduct and the imposition of sentence, which is relevant in this case, the Court said:

[D]espite the antiquity of the offences and the respondent's apparently blameless life since then, in my opinion the sentences so devalue the gravity of the offences that it is to be inferred that the sentencing judge fell into error, although no particular error can be identified ... The lapse of time since the commission of these offences is not unusual. Nor is the otherwise blameless life of the offender. The crimes themselves and their consequences demand a significant sentence. General deterrence and denunciation of the respondent's conduct are of the first importance.

...

Often such victims, experiencing unjustified feelings of embarrassment, shame, guilt that have been induced by the behaviour of the perpetrator, will continue to remain so for many years. Accordingly, and very frequently, as in this case, the commission of offences will not be exposed until long afterwards. Considered in this light, it is in my opinion apparent that the principle of general deterrence must assume very considerable significance as a sentencing consideration. Further, it is incumbent on the courts, however long ago the offences were committed, to express the denunciation of the community of such behaviour, through sentences imposed on perpetrators. They must be seen to vindicate the values of society that they represent, fundamental to which is the protection of its children.

Nettle JA agreed and added:

I agree with the learned presiding judge and with Vincent JA that cases such as this case can no longer be regarded as exceptional by reason only that the offending occurred a long time ago and that the offender may since have gone a considerable way towards rehabilitation. Regrettably, such cases occur all too frequently.[18]

59 In relation to your victim, Ashley Martin, your counsel accepted that, as a result of the agreed facts, you fall to be sentenced on the basis that by your first act of sexual penetration of her, you deprived her of her virginity. This has the effect of increasing the objective gravity of your offending conduct.[19]

60 In Adamson v R, the Court of Appeal[20] quoted, with approval from the judgment of Baroness Hale in R v G,[21] where Her Ladyship said:

Penetrative sex is the most serious form of sexual activity, from which children under 13 (who may well not yet have reached puberty) deserve to be protected whether they like it or not. There are still some people for whom the loss of virginity is an important step, not to be lightly undertaken, or for whom its premature loss may eventually prove more harmful than they understand at the time. More importantly, anyone who has practised in the family courts is only too well aware of the long term and serious harm, both physical and psychological, which premature sexual activity can do. And the harm which may be done by premature sexual penetration is not necessarily lessened by the age of the person penetrating. That will depend upon all the circumstances of the case, of which his age is only one.

The reference to children aged under 13 was referrable to the particular legislative provisions there before the House of Lords. Baroness Hale's comments are equally applicable here, where your victim was aged 14 at the relevant time.

61 The Victorian Court of Appeal in Clarkson further said:

In its statutory context, the absolute prohibition on sexual activity with a child can be seen as having twin purposes. The first is to protect children from the harms caused by premature sexual activity and - to that end - to protect them from their own immaturity. On behalf of the community, Parliament has decided that those under 16 cannot meaningfully consent to sexual activity, even if subjectively attracted to the idea of participating in such activity. Secondly - and in order to advance the protective purpose - the prohibition is designed to deter those who might contemplate sexual activity with a person under 16.

This is why the sentencing principles of general deterrence and denunciation loom so large in cases of this nature.

62 Moreover, your counsel accepted that you having unprotected penile/vaginal sexual intercourse with Ms Martin was an aggravating circumstance in this case. In my view, it showed a complete disregard with respect to exposing Ms Martin to a risk of contracting a sexually transmitted disease and your conduct towards her in this regard also showed a complete disregard of a real risk that she might become pregnant.[22] This increases further the objective gravity of your offending conduct and your moral culpability for it.

63 Another aggravating circumstance of your offending against both victims is the extent of the age difference, and the imbalance in power and authority between you and your victims.[23] You were placed in a position of trust by the victims and their parents and your offending was a gross breach of this trust, as was conceded by your counsel. Moreover, your victims were vulnerable young girls seeking to further their gymnastic career, who saw you as a father-figure and were, to that extent, dependent on you for their preferment in the sport in which they hoped to achieve great things.

64 I accept the Crown's submission that in respect of the incident involving Ms Martin in the car there was a degree of planning involved, and that this cannot be characterised as a spontaneous offence. I also note that there was a large degree of resistance offered by Ms Jackson, and that you sought to overbear her will in that regard. These are also factors which tend to aggravate the objective gravity of those offences respectively.

65 On any view, these are very grave offences and your moral culpability is very high. On behalf of the Victorian community, I strongly denounce your conduct.

66 You are currently aged 76 years,[24] and were 33 years old at the time of the offending against Ms Jackson, and 41 years old at the time of the offending against Ms Martin. You have no prior criminal history and have committed no subsequent offences. You currently reside in Queensland with your long-term current partner, Roslyn.

67 Your early years were marked by disruption and family upheaval. Your parents separated when you were 5 years old. You had minimum involvement with your father following his commencing a new relationship and having a second family after his separation from your mother. You always maintained a stable and amiable relationship with your mother.

68 So far as your education is concerned, you boarded at St Cuthbert's Boys' Home in Colac before completing your primary education at Yarra Park State School. You completed Year 10 at Swinburne Technical College, after which you commenced work as an office clerk, while at the same time pursuing a career in gymnastics, winning Victorian championships in the early 1960s.

69 Following your Year 10, you continued to reside with your mother who, by this stage had remarried, and you commenced living independently at the age of 18. You later completed a Graduate Diploma in Sports Science and worked as a physical education teacher at a number of secondary colleges for over 30 years. You developed a gymnastics club, training elite gymnasts, regularly travelled overseas, and you trained gymnasts, who competed at international level. You also performed duties as a judge for the International Federation of Gymnastics. The gymnastics club ceased operations in the late 1990s and you retired from teaching a little over ten years ago.

70 You were married in 1963 and have four children as a result of that union. Three of your four children were present in Court during the plea hearing. Your marriage came to an end in 1972, after you discovered your wife had been unfaithful to you. You did not recommence a further long-standing relationship until 1998, when you commenced a relationship with your current partner, Roslyn, whom, I am told, is a key source of emotional support for you and is fully aware of the present charges.

71 I received a number of character references from a former gymnast at your club,[25] your brother[26] and your current partner, Roslyn.[27] I have taken their contents into account.

72 I accept the following mitigating circumstances:

(i) You fall to be sentenced as a person of prior good character with no prior or subsequent offences;

(ii) You entered a plea of guilty to the charges on the indictment at an early stage in the proceedings, being at the time of the committal mention on 11 April 2017. You will receive a significant discount for both the objective and subjective circumstances arising from your early plea of guilty;

(iii) I accept that you are remorseful and genuinely ashamed of your behaviour;

(iv) I accept that you are at a low risk of further offending;

(v) I accept that you have had a significant emotional reaction to being charged in relation to these offences, which has included a number of attempts at self-harm. In this regard I note the letter from Dr Brendan Hughes, dated 20 February 2017.[28] (Ex D5).

(vi) I accept that you have good prospects of rehabilitation;

(vii) I accept that you will suffer a degree of custodial hardship by reason of being separated from your long-term current partner, who is suffering from the debilitating condition of polymyalgia.

73 A highly significant factor in sentencing you is your age of 76 years. By reason of this, I must tailor a sentence that is not crushing in the circumstances, given that the proportion of your remaining life is not as great as for a younger person. I must be careful not to impose a sentence which deprives you of any reasonable expectation of a useful life after serving your sentence. However, your age must not be given such weight as to swamp all other relevant sentencing considerations; in particular, general deterrence, denunciation and just punishment.

74 Moreover, on Charge 3, you will fall to be sentenced as a serious sexual offender and, thereby, come within the statutory requirement that I must regard the protection of the community from you as the primary purpose for which the sentence on Charge 3 is imposed.[29] In this regard, I note that the Director does not submit that I should impose a sentence longer than that which is proportionate to the gravity of your offence, considered in the light of its objective circumstances.

75 However, your age cannot, alone, be relied upon to escape just punishment or to attract lenient treatment. As the Victorian Court of Appeal opined in Belbruno v R:[30]

Age, whether young or old, will, of course, always be a factor relevant to the sentencing discretion, but those of advancing years who commit crimes as serious as these were, cannot expect to escape appropriate punishment by reason of that factor alone.

His Honour referred to R v Bazley[31] and R v Crowley and Garnier.[32]

76 Moreover, in R v Gregory,[33] Winneke P said:

Those who commit such crimes at an advanced age cannot expect to escape the consequences of what they have done simply because of their age. Age, in many cases, will be a relevant sentencing consideration, whether it be youthful or advanced. But age, alone, cannot be permitted to justify the imposition of an unacceptably inappropriate sentence.[34]

77 Nonetheless, I do take into account your age, both in terms of the proportion of your remaining life and in terms of the increased burden of imprisonment on you by reason of your age.[35]

78 I have also taken into account the fact of delay although, of course, delay, as I noted earlier, in cases of this type is often a factor related to the circumstances of the offending. In the present case, the delay was as a result of your victims not being able to come to terms with the effect your crimes had on them and them not having the capacity to complain earlier than they did. I was advised this prosecution of you came about as a result of the victims approaching the Royal Commission into Institutional Responses to Child Sexual Abuse, chaired by the Honourable Justice Peter McClellan. Nonetheless, your age and your character over an extended period of time since you committed these offences is a matter that I must take into account in mitigating the penalty I might otherwise have imposed on you.[36]

79 You appear to be in relatively good physical and mental health. Your counsel did not rely on any of the principles enunciated in R v Verdins.[37]

80 I have considered current sentencing practice in relation to these offences in light of the recent decision of the High Court of Australia in DPP v Dalgliesh (a pseudonym).[38] In this regard, I was provided by the prosecution with some sentencing statistics for the two offences before me, which I must say were not of much assistance.[39] It is in the nature of things that these generalised statistics are not of much assistance. It is difficult to gauge more than a very general yardstick from so-called "comparable" cases, given the wide range of offending conduct which can constitute offences against these provisions and the myriad of personal circumstances pertaining to individual offenders. Nonetheless, to the extent that I have been able to gain assistance from comparable cases, I have sought to do so in this case.

81 I have given consideration to the principle of parsimony. It is clear, given the seriousness of your offences, that no other sentencing disposition other than an immediate term of imprisonment is appropriate in all the circumstances of the case. Not only was this conceded by your counsel, but your counsel also conceded that a total effective sentence of three years' imprisonment was not within range. That submission was made in the context of raising the issue whether a wholly or partially suspended sentence was open. Your counsel conceded that it was not.

82 So far as totality is concerned, I am of the view that there should be a measure of cumulation between Charge 1 and Charge 2 to reflect the time difference between the offences and the invasion of different victims' rights to their bodily integrity. Moreover, in light of the fact that you fall to be sentenced as a serious sexual offender in respect of Charge 3 and, therefore, s 6E of the Sentencing Act 1991 will apply, and in recognition of the fact that the two offences committed against Ms Martin occurred on quite separate occasions and in different circumstances. I will order a significant degree of cumulation between Charges 2 and 3, but not so as to impose a crushing sentence or to otherwise infringe the totality principle.

83 Your counsel submitted that I should impose a sentence which involves a lesser non-parole period than I might otherwise have imposed in light of the mitigating circumstances present in this case and, in particular, your advanced age. I accept that submission and will set a non-parole period which will allow for your earlier release on parole than might otherwise have been the case.

83 On Charge 1 (indecent assault upon a female) you are convicted and sentenced to be imprisoned for 18 months. On Charge 2 (sexual penetration of a child between the ages of 10 and 16 years, under care, supervision and authority) you are convicted and sentenced to be imprisoned for 3 years and 6 months' imprisonment. On Charge 3 (sexual penetration of a child between the ages of 10 and 16 years, under care, supervision and authority) you are convicted and sentenced to be imprisoned for 3 years and 6 months' imprisonment. Charge 2 will be the base sentence. I order that 9 months of the sentence imposed on Charge 1 and 21 months of the sentence imposed on Charge 3 be served cumulatively on the sentence imposed on Charge 2 and on each other. This makes a total effective sentence of 6 years' imprisonment. I fix a period of 3 years and 6 months' imprisonment before you are eligible to be released on parole.

84 I declare that the period of 55 days (not including this day) as the period of pre-sentence detention to be reckoned as already served under this sentence and I direct that the fact that declaration was made and its details be noted in the records of the Court.

85 Pursuant to s 6AAA of the Sentencing Act 1991 I state that the sentence I would have imposed but for you pleas of guilty would have been a total effective sentence of 9 years' imprisonment with a non-parole period of 5 years' imprisonment.

86 Pursuant to s 6F of the Sentencing Act 1991 I state that on Charge 3 you are sentenced as a serious sexual offender and I direct that that fact be entered in the records of the Court.

87 Pursuant to the Sex Offenders Registration Act 2004 I declare that you are a registrable offender and the length of the reporting period applicable to you is life.

88. I note that on the last occasion I made an order under s 464ZF of the Crimes Act.

[1] Contrary to s 55(1) of the Crimes Act 1958 (Vic) ("the Crimes Act") as amended by the Crimes (Amendment) Act 1967 (Vic)

[2] Contrary to s 48(1) of the Crimes Act as amended by the Crimes (Sexual Offences) Act 1980

[3] Pursuant to s 55(1) of the Crimes Act as amended by the Crimes (Amendment) Act 1967 (Vic)

[4] Pursuant to s 48(3)(a) of the Crimes Act as amended by the Crimes (Sexual Offences) Act 1980

[8] These are uncharged acts, which are only relevant as context evidence. See e.g. Daniel (a pseudonym) v R [2017] VSCA 159 [65] (Redlich and Priest JJA, Croucher AJA agreeing)

[11] [2016] VSCA 218 [39] (Weinberg and Osborn JJA)

[12] [2009] VSCA 115; (2009) 22 VR 444

[13] [2006] VSCA 90

[14] DPP v Toomey [2006] VSCA 90 [22] cited in DPP v DDJ [2009] VSCA 115; (2009) 22 VR 444, 454 [40].

[15] See eg R v Wayland (unreported, Court of Criminal Appeal, Crockett, Southwell and Hampel JJ, 14 September 1992) 3-4 (Crockett J, Southwell and Hampel JJ agreeing); R v Sposito (unreported, Court of Criminal Appeal, Marks, Hampel and McDonald JJ, 8 June 1993) 4-5 (Marks J, Hampel and McDonald JJ agreeing); R v Ware [1997] 1 VR 647, 653 (Hedigan AJA, Winneke P and Hayne JA agreeing); R v Wakime [1997] 1 VR 242, 244 (Winneke P, Hayne JA and Hedigan AJA agreeing); R v WEF [1998] 2 VR 385, 387 (Winneke P, Charles JA and Hedigan AJA); DPP v VH [2004] VSCA 180; (2004) 10 VR 234, 237-238 [11], (Callaway JA, Buchanan JA agreeing), 241 [23] (Eames JA); DPP v CPD [2009] VSCA 114; (2009) 22 VR 533, 546-547[54]-[56] (Maxwell P, Redlich JA and Robson AJA); DPP v DDJ [2009] VSCA 115; (2009) 22 VR 444, 453-454 [36]-[40] (Maxwell P, Vincent and Neave JJA); DPP v TDJ [2009] VSCA 317, [14]-[19] (Maxwell P and Neave JA); Reid (a Pseudonym) v The Queen [2014] VSCA 145; (2014) 42 VR 295, 310 [83]; Sutton (a Pseudonym) v The Queen [2015] VSCA 251, [25]-[28] Maxwell P and Redlich JA.

[16] [2015] VSCA 274 [71]

[17] [2006] VSCA 90

[18] DPP v Toomey [VSCA] 90 [10]-[11] and [14] (Buchanan JA) (citations omitted); [17] (Vincent JA); [26] (Nettle JA).

[19] Adamson v R (2015) 47 VR 268

[20] Ibid 280 [18] (Warren CJ, Redlich and Weinberg JJA)

[21] [2008] UKHL 37; [2009] 1 AC 92, 108-9 [48]-[49]. See also Clarkson v R; EJA v R [2011] VSCA 157; (2011) 32 VR 361, 370-1 [32].

[22] R v Khem [2008] VSCA 136; (2008) 186 A Crim R 465, 469-70 [17]-[20] (Neave JA), 472-3 [34] (Pagone AJA); BM v R [2013] VSCA 3 [23]-[28] (Maxwell P, Whelan JA agreeing).

[23] Clarkson v R; EJM v R [2011] VSCA 157; (2011) 32 VR 361, 364-5 [5]-[7] (Maxwell ACJ; Nettle, Neave, Redlich and Harper JJA) R v Gajjar [2008] VSCA 268; (2008) 192 A Crim R 76, 79 [16], 84 [50] (Maxwell P, Nettle and Weinberg JJA).

[29] Sentencing Act 1991 (Vic), s6D

[30] [2000] VSCA 201; (2000) 117 A Crim R 150, 153 [9] (Winneke P, Callaway and Buchanan JJA agreeing)

[31] (1993) 65 A Crim R 154, 158 (Crockett, Hampel and Smith JJ)

[32] (1991) 55 A Crim R 201, 206 (Crockett J, Southwell and Ashley agreeing)

[33] [2000] VSCA 212

[35] See R v DD (No 2) [2008] VSCA 15

[36] See Stalio v R [2012] VSCA 120 [71]

[37] [2007] VSCA 102; (2007) 16 VR 269

[38] [2017] HCA 41