DPP v Pyke

1. On another occasion during the same time frame, you were at home with

Ms Logan and the children. While her mother was outside with some friends, Susanna approached you in the loungeroom, and you rubbed her vagina over her clothing, for about five minutes, in the same manner as on the previous occasion. This is Charge 2.

1. During the same time frame you drove Susanna to a local miniature amusement park. You maintain this property for the owners who do not live there. While seated in the front seat of your car, you removed Susanna's pants and underwear and rubbed your finger up and down her vagina. This is Charge 3.

1. Again, in the same time frame, you drove Susanna to the same place and committed the offence in the same way as the previous time. This is Charge 4.

1. On 22 November 2022 you again took Susanna to the local miniature park. She had her iPad with her and used it to take photos of the park and of you. While in the front seat of the vehicle you removed her lower garments and used your finger to rub her vagina. You later described the incidents at the railway as 'half-hour sessions'. This is Charge 5.
2. Several days later, on 27 November, Ms Logan found Susanna in her bedroom with her pants down. She said she was showing her sister where Grandpa touches her. Ms Logan contacted her mother, who lives interstate, and Susanna spoke with her grandmother via Facetime, telling her that you did things to her that mums and dads do, and she did not like it. She said it happened when the two of you went to the miniature park, when you were sitting in your Ute.
3. On 29 November Ms Logan confronted you about it and you told her to leave you alone, and you went to bed. You later rang her and apologised for it and asked her to keep it in house.
4. Ms Logan then reported the matter to the police.
5. You were arrested on 6 December 2022 and interviewed, during which you made full admissions.
6. You stated that Susanna would dance around and do cartwheels in the loungeroom in a provocative way. You said you believed that girls were becoming sexual at a younger age because of what they were watching on the internet, and you were aware that Susanna had been taught sex education at school.
7. You said that Susanna had wanted you to do what you did, and that she was quite obliging, and that she enjoyed it. You said she had led you on by agreeing to go to the miniature park in the first place.
8. You explained that owing to your impotence this behaviour was not sexually gratifying. You said that when Susanna did not want to do it anymore, that was the end of it.
9. You said you were ashamed about it, that it was a one-off thing, in the wrong spot at the wrong time, and it was just one of those things that happened.

1. The serious nature of these offences is indicated by the maximum sentence of

10 years' imprisonment and in addition the standard sentencing provisions of the Sentencing Act 1991 which apply, with the standard sentence set at four years. 2. The gross breach of trust between great-grandfather and great-granddaughter is the first feature to establish the seriousness of the particular offending in this case. Susanna's young age and vulnerability is a second feature. It was repeated four further times after the first incident, with Susanna being taken away from home in those instances, making her even more vulnerable. 3. The period of offending was relatively brief, but with a regularity that probably made it less likely Susanna would object. 4. There was no force or physical violence used and no threats made to her as to secrecy, as is often the case. 5. As an example of this type of offending its level of seriousness is certainly not below mid-range. You knew what you were doing was wrong, and you repeated it four times after the first occasion. 6. Victim impact Statements were provided by Harper Logan, Susanna's mother, and her grandmother. 7. Harper Logan described the sadness caused by the family breakdown which followed from your offending. She and the children have had to return to live in Melbourne, away from the support of her parents and closer to where her

ex-partner lives, which comes with the threat of repeated violence from him. 8. She states that Susanna has trouble sleeping and has meltdowns, blaming herself for the family being torn apart. She is having counselling. The law presumes that children who are subjected to sexual abuse do suffer harm, and evidence in a particular case is not required for this harm to be taken into account. 9. The victim's grandmother states that the family has been shattered beyond repair, and she has lost her father, and cannot call him that any longer. She has become socially withdrawn and suspicious of people. She feels guilty for having encouraged her daughter and the children to come to live with her parents when they were looking for somewhere to live. 10. She worries about the possibility of harm to her other grandchildren.

1. You are aged 78, and you are a man with a sound working history and no prior convictions. You were married to your wife for over 50 years and had two daughters, one of whom, as I have said before, is Susanna's grandmother.
2. You had an unremarkable childhood, with no developmental or other problematic issues. You left school aged 14 and completed an apprenticeship as a screen painter and also gained qualifications as a sign writer. You worked in that field for some years and then became a truck driver, from which you retired recently, but you were still doing some part-time work as recently as 2024.
3. Some six to eight months ago you fell asleep while driving and drove off the road. You were charged with an offence and stopped driving for a time. You underwent various medical tests and eventually regained your licence to drive cars, but not trucks.
4. In October 2023 you were assessed by psychologist, Dr Matthew Barth. You told Dr Barth that your relationship with your wife had become more distant in recent years with reduced intimacy, and you had become impotent owing to an accident at work when you were struck on the penis by a truck chain.
5. Dr Barth found you were suffering from a mild degree of stress directly resulting from being charged with the offending but found no disorder of any sort. He considers that you have difficulty establishing and maintaining close connections with others, and this has culminated in the breakdown of your marriage.[4]
6. Dr Barth identified two key areas of concern, which go some way to providing an explanation for your offending.
7. The first is that you attributed a precocious sexuality to the complainant during the period of offending. You thought that because she was indicating interest and making enquiries about sexual behaviour, this meant she was ready for sexual activity. Dr Barth described such thoughts in professional terms as 'offence supporting cognitions'[5] which are distorted thoughts or attitudes that serve to motivate and justify sexual offending.
8. Dr Barth considered that this led you to develop a grossly dysfunctional sexual interest in her, at a time when you were feeling rejected and overwhelmed with the stressors of your home environment. He said you had very limited insight into such matters, and this indicated the need for specialist sex-offender treatment.
9. Dr Barth concluded that this treatment, together with several significant protective factors he identified, would place you at a low to moderate risk of re-offending.
10. Those protective factors include your advanced age, good employment history, lack of prior convictions, and having lived in a stable relationship for a long time. Because your offending was against a relative, the risk to the general community is not considered a high risk.
11. Dr Barth made the qualifying comment that for you to achieve comprehensive insight, a lengthy therapeutic process will be needed. He noted that several community-based options are available for such treatment, and that the sooner you can begin such treatment, the better for your rehabilitative prospects.
12. There are several other mitigating factors to be taken into account.
13. Your plea of guilty was indicated at an early stage, and has, importantly, avoided a trial and the need for witnesses to have to give evidence. In this way it has assisted the criminal justice system and warrants a discount on your sentence. I accept it also as an indication of remorse, which you have expressed to others as well. You made admissions when interviewed and told Dr Barth that you were sincerely apologetic and totally ashamed.
14. Those matters indicate good prospects for rehabilitation, as does the fact that in a long life you have never been convicted of any offence. Your friend has written that your offending is out of character, and he knows that you are extremely remorseful.
15. The delay of some two years appears not to be attributable to any specific factor other than the vagaries of circuit listing and the precedence given to trials. You have had the case hanging over your head for that time, which has caused the stress noted by Dr Barth.
16. You have become estranged from most of your family because of the offending, but you remain in contact with your wife, who has Alzheimer's disease and is being cared for by her sister in NSW. You also have some contact with the other of your two daughters.
17. As for your health otherwise, while you have no psychological disorder you have some significant physical health conditions, needing medication. You have heart disease, with two stents having been inserted into your heart. You have digestive problems with a procedure scheduled to take place. You have chronic leg pain as a result of a truck accident, and you have bad sleep apnoea causing fatigue and requiring a CPAP machine at night. You are deaf and you need hearing aids.
18. Some three weeks ago you were admitted to hospital for the removal of your gall bladder.

1. General and specific deterrence are important principles which need to be reflected in the sentence imposed. In your case it is reasonably unlikely you will offend again, partly because there will be negligible opportunity for you to do so, given that it is accepted that there is little risk to the broader population outside your family from whom you are estranged. Accordingly, the role of specific deterrence is somewhat reduced.
2. However, the courts must send a clear message to others that sexual abuse of children is inherently very serious and must be condemned by means of harsh sentencing. The need for the courts to strongly denounce such offending is to be considered as well as the need for general deterrence.
3. At the same time, just punishment is also important. You are an elderly man with several health problems that are likely to make your time in prison more burdensome than for others. An important consideration of your age is that the longer the sentence you will have to serve, the greater the risk that this time will represent most, if not all, of the rest of your life, with the possibility that you may die before being released.
4. The authorities emphasise that the age and health of an offender are relevant to the exercise of the sentencing discretion but are not determinative of the quantum of the sentence.[6]
5. These offences are subject to the standard sentencing provisions of the Sentencing Act 1991, as I said before, with four years being the standard sentence. I must take that into consideration as part of the intuitive sentencing process, to determine an appropriate sentence, having taken into account all relevant matters.
6. I was referred to a number of cases with some similarities to this case, where the offending was subject also to the standard sentence.
7. Mr Pyke, I sentence you to the following terms of imprisonment.

1. The sentence for Charge 3 is the base sentence for purposes of cumulation.
2. Four months of each of the other sentences are to be served in cumulation upon the base sentence. This results in a total effective sentence of 3 years and 10 months. I order that you serve a minimum period of 2 years and 6 months before being eligible for parole.
3. Section11A(4)(c) of the Sentencing Act 1991 requires that the non-parole period be fixed at at least 60 per cent of the head sentence, unless it is not in the interests of justice to do so.
4. In this case there is no justification for fixing the non-parole period at less than 60 per cent of the head sentence.
5. Because I have sentenced you to prison for the first two charges on the indictment, you are to be sentenced as a serious sexual offender for each of the remaining charges. The prosecution does not seek a disproportionate sentence in that regard.
6. Under the Sex Offenders Registration Act, you will be required to provide your details to the police every year for the rest of your life.
7. I am not sure of the exact calculation of the pre sentence detention days as of today, I will come back to that in a moment.
8. I declare that this time will have been already served and I shall note it on the court record.
9. If you had pleaded not guilty to these charges, I would have sentenced you to five years with a non-parole period of three years and eight months.
10. MS ALLAN: Your Honour, I think it is nine days not including today, but please check that I have got that right.
11. HER HONOUR: Do you agree with that, Mr Moore?
12. MR MOORE: I do, Your Honour.
13. HER HONOUR: Thank you. Nine days then. All right, that will be the pre-sentence detention.
14. Are there any other matters I have omitted or neglected?
15. MR MOORE: No, Your Honour.
16. MS ALLAN: Your Honour, I am not sure if you have made a declaration pursuant to s6AAA.
17. HER HONOUR: You are quite right, I didn't. Just one moment please.
18. Maybe I did, Ms Allan, I will read it out again anyway.
19. If you had pleaded not guilty to these charges, I would have sentenced you to five years with a non-parole period of three years and eight months.
20. I think that must complete everything now.
21. MR MOORE: It does, Your Honour.
22. MS ALLAN: As Your Honour pleases.
23. OFFENDER: With due respect, Your Honour, can I ask a question?
24. HER HONOUR: What I might do, Mr Pyke, is ask everyone to leave the court except for my staff and Ms Allan, and she can speak to you over the video link, will that be all right?
25. OFFENDER: Yeah, all right, I just want to ask a question, that's all.
26. HER HONOUR: All right. Well I can't hear you because your voice is a bit muffled, so I'm going to leave the Bench and if there's any problem, I can be asked to come back into court. So Mr Moore, if you wouldn't mind just taking yourself off the screen but remain available for a moment.
27. MR MOORE: Certainly, Your Honour.
28. HER HONOUR: Thank you.

[4] Report of Dr Barth dated 28 November 2023 [at] par 34-35

[6] R v RLP [2009] VSCA 271 [at] 39