DPP v R L P [2008] VSC 381

3 The presentment filed herein was of 30 counts. On 15 May 2008 you, Mr P, pleaded guilty before me to each of those counts. The matter was stood over for a plea hearing. Upon resumption on 5 August 2008, the Director, for whom Mr Brown of counsel appeared, announced that no admissible evidence was available to support count 25, one of seven counts of incest. Accordingly, I gave leave for your plea of guilty to that count to be withdrawn, a plea of not guilty to be entered in its place, and then, pursuant to s.391 Crimes Act 1958, I directed that an entry of not guilty be made upon the record in respect of that count. Of course, you receive the plenary benefit of acquittal on count 25. Your counsel, Mr Gwynn, in that regard relied upon a report of 17 June 2008, Exhibit "1" before me, of Mr J.E. Cummins, clinical psychologist, that your "reported retrograde amnesia could be consistent with the diagnosis of a Conversion Disorder (DSM-IV-TR, code 300.11)". I shall return to Mr Cummins' report. In my view, your plea of guilty to count 25 simply reflects the fact that you have committed so many sexual offences over so many years against so many victims that you cannot remember each of them. One of your victims has no memory, not because of familiarity but because of pain. In a victim impact statement she stated:

"I have no childhood memories at all. They are all blocked out. Counselling has not helped me".

4 Putting aside count 25, you have pleaded guilty to 29 counts of most serious offences against eight vulnerable children in your trust and care over 37 years. The victims were children of two families and the children of two of those very children. You were the father, uncle, stepfather or grandfather of each of your victims. The offences occurred from 1970 until 2007. You only ceased offending when your abuse was revealed. You committed six counts of incest, two counts of carnal knowledge of a girl under 10 years, four counts of indecent acts with a child under 16 years, five counts of indecent assault, 11 counts of indecent assault on a girl, and one count of common assault (count 13). All the offences except count 13 were against young girls, the youngest of whom was four years of age. The only count against an adult was count 13, an assault upon the mother of one of the victims to ensure your offences were not reported to the authorities. You are now to be sentenced for these crimes.

5 The change in nomenclature of some of the offences arises because they were committed over time. On 1 March 1981, the Crimes (Sexual Offences) Act 1980 came into operation, creating an offence of indecent assault which is the subject of count 16. On 5 August 1991, the Crimes (Sexual Offences) Act 1990 came into operation, creating an offence of committing an indecent act with a child under 16 years which is the subject of count 24. In the case of incest, the statutory penalty of 20 years' imprisonment was, from 1 September 1997, increased to 25 years' imprisonment: s.44(1) and s.109 Crimes Act 1958. The counts of incest occurred in 1976 - 1977 (counts 7 and 8), 1979 - 1981 (counts 19 - 20), 1991 - 1993 (count 26) and 2007 (count 30).

6 Mr P, you were born in 1932 and are now 76 years of age. You were raised in northern Victoria as one of nine children, commenced employment at 16 years of age, and were regularly employed during your adult life, which was spent primarily in Victoria and Queensland. Formally, you have no prior convictions, although of course you were committing these serious criminal offences over almost four decades.

8 You were married to your first wife in 1954 and separated in 1974. There were two male children and then four female children of the marriage. Against the first female child, D, born in 1959, you committed indecent assault between 1970 and 1973 (count 1). Against the second, J, born in 1964, you committed indecent assault in 1970 (count 2) and 1972 - 1974 (counts 3 and 4); carnal knowledge in 1972 - 1974 when she was under 10 years of age (count 5); indecent assault in 1975 - 1976 (count 6); carnal knowledge in 1976 - 1977 when she was over 10 years of age (counts 7 and 8); and indecent assault in 1978 - 1979 (count 9). Against the third, W, born in 1968, you committed indecent assault in 1974 - 1975 (counts 10 and 11) and carnal knowledge in 1974 - 1975 when she was under 10 years of age (count 12). In 1976 you assaulted the children's mother to ensure your offences were not reported (count 13). Then in 1979 - 1981 you indecently assaulted the youngest of your four daughters, L (count 14), born in 1970.

9 You then committed a series of offences against the daughter, L.J., of your brother. She was born in 1969. In 1979 - 1981 you indecently assaulted her (count 15); in 1979 - 1985 you further indecently assaulted her (counts 16 - 18); and in 1979 - 1981 you committed incest upon her, she being under 10 years of age (counts 19 and 20).

10 You married the wife of that brother. By that marriage you had two children. One of them was a girl, E, who was born in 1978.

11 Against that girl you committed five offences: in 1983 - 1984, indecent assault (count 21); in 1988 - 1990, indecent assault (count 22); in 1991, indecent assault (count 23); in 1991 - 1993, indecent act (count 24); and in 1991 - 1993, incest (count 26).

12 You then proceeded to prey upon the next generation of your own victims. One of your victims, your daughter L, herself had a daughter, A, in 1989. Against A in 1995 - 1996 you committed indecent acts (counts 27 - 28). Another of your victims, your daughter E, had a daughter, C, in 2002. Against C in 2007 you committed an indecent act (count 29) and in 2007 you committed incest (count 30).

14 It is not of utility to state the vast detail of your offences. I shall mark as Exhibit "B" the prosecution revised summary of facts, which was agreed to by the defence, and place it on the Court file. It is of twenty-four pages.

15 In order for an understanding of the nature and extent of your offences to be gained, I state the following:

a) Victim D, your daughter: Count 1: when she was 11 years of age you digitally touched her vagina. Count 1 is also representative of the many other occasions when you did this to her over a period of five years from the age of eight.

b) Victim J, your daughter: Count 2: you inserted your fingers into her vagina. Count 2 is also representative of many other occasions when you did this. Count 3: you inserted your fingers in her vagina. Count 3 is also representative of the other occasions when you did this. Count 4: you rubbed your penis on the outside of her vagina. Count 4 is also representative of the many other occasions when you did this. Count 5: you inserted your penis into her vagina. She called on you to stop (on the earlier counts having unsuccessfully said "don't" to you). In an egregiously manipulative statement, you told her that she could not tell her mother and that if she did, she and her mother would get into trouble. Count 6: you inserted your fingers in her vagina. Count 6 is also representative of the many other occasions when you did this. Count 7: you inserted your penis into her vagina and then masturbated to ejaculation in her presence. Count 8: you inserted your penis into her vagina and ejaculated inside her. Count 9: you touched the outside of her vagina. She was between the ages of 7 to 14 years when you committed these offences upon her.

c) Victim W, your daughter: Count 10: you touched her vagina. Count 11: you rubbed your erect penis against her vagina. Count 12: you inserted your penis in her vagina. Counts 11 and 12 are representative counts of the many times you did that to her. She was between the ages of five to seven years when you committed these offences upon her.

d) Victim S: the mother of Victim J: Count 13: on one occasion J threatened to tell everyone what you had been doing to her. You threatened to strike J with your work boot. The mother intervened. You pushed the mother away so severely that she lost consciousness. This was criminal enforcement.

e) Victim L, your daughter: Count 14: she woke up one night and found you were in her bedroom and had inserted your fingers into her vagina. She was nine years of age at the time.

f) Victim L.J., your stepdaughter: Count 15: you inserted your fingers into her vagina. This count is also representative of the many other occasions you did this. Count 16 (after the commencement of the Crimes (Sexual Offences) Act 1980): you inserted your fingers into her vagina. This count is also representative of the many other occasions you did this. Count 17: you penetrated her vagina with your tongue. Count 18: you did so again. Count 19: you inserted your penis into her vagina. Count 20: you did so again. She was between the ages of 11 to 15 years when you committed these offences upon her.

g) Victim E, your daughter: Count 21: you digitally touched her vagina. Count 21 is also representative of many other occasions when you did this. Count 22: you rubbed your erect penis on her vagina. Count 22 is also representative of the many other occasions you did this. Count 23: you licked her vagina and rubbed your erect penis on her vagina. Count 23 is also representative of the many other occasions you did this. Count 24 (after the commencement of the Crimes (Sexual Offences) Act 1990): you licked E's vagina. Count 24 is also representative of the many other occasions you did this. Count 26: you inserted your penis into her vagina. Count 26 is also representative of the many other occasions you did this. She was between the ages of 5 and 15 years when you committed these offences upon her.

h) Victim A, your granddaughter: Count 27: you digitally touched her vagina. Count 27 is also representative of another occasion when you did this. Count 28: you licked her vagina. She was between the ages of six to seven years when you committed these offences upon her.

i) Victim C, your granddaughter: Count 29: you licked her vagina. Count 29 is also representative of four of five other occasions you did this. Count 30: you penetrated her vagina with your tongue. Count 30 is also representative of another occasion you did this. She was between the ages of four to five years when you committed these offences upon her.

16 In January 2007 when you were committing your criminal offences against the four-year-old victim C, her elder brother saw you. This led to an extensive police investigation. You were interviewed by police on 17 April 2007 and on 18 May 2007. Initially you were deceptive and untruthful to the police; you blamed the victims (A.953); but you made extensive admissions which, in turn, solely found two counts against you, notably Counts 1 and 30.[1] Your victims had the trauma of police investigation. You were charged, committed on 1 May 2008 for trial to this Court, and now are to be sentenced for your crimes.

17 Your victims were of most tender years. They were wholly vulnerable. You were in a position of paternal authority over them. Many times they sought to prevent your approaches, only to be overridden by you or manipulated by you. Your conduct over many years constituted the grossest and most profound breach of duty and of trust. The abuse you perpetrated upon them is but the gateway to their deeper, lasting trauma: the suffering and anguish you have bequeathed them, you, their father, stepfather and grandfather.

18 The pain and terrible conflict of emotions you have bequeathed your daughters and granddaughters is movingly expressed in another victim impact statement:

"You have no idea how much you have hurt us and how much damage you did to us, both mentally and physically. We were just children, innocent children, and you took that innocence away. I looked up to you because you were my father and for a time my only parent. You were in a position of trust and I wanted a Dad so much, I needed one so much. You should have been protecting me but instead you were damaging me. Words can't describe the torture I have been in for so many years because of what you did. How dirty I felt, how dysfunctional I felt our family was and how removed I felt from the general public ...

It is natural to love your father, but you took my father away, and in return you left me with deep emotional scars, and even some physical ones."

The same victim, showing remarkable goodness and maturity, also stated:

"... I do not believe that a gaol term is the correct approach for this man. He needs treatment over punishment. I cannot see how merely punishing him will assist in rehabilitating him and hope that the courts can achieve some kind of solution that will ensure that he is prevented from re-offending but without a futile gaol term."

The criminal law is multifactorial. Rehabilitation is one important factor. Condemnation, punishment and deterrence are others. I shall return to those factors.

19 I have had regard to the medical and psychological material tendered on your behalf. In particular I have had regard to the medical reports of your long-term doctor, Dr G. Jacobs, of 24 June 2008, and extensive medical history appended thereto, being Exhibit "3" on the plea. Your health is not strong and you suffer depression. You suffer from Meniere's disease (1995), ulcers (1998), infra renal aortic aneurysm (2003) and a lacunar stroke (2007). Two reports, of 17 June 2008 and 1 August 2008, Exhibits "1" and "2" respectively on the plea, have been tendered of Mr J.E. Cummins, a highly regarded clinical psychologist. I have referred in paragraph 3 above to the question of conversion disorder. You are not psychotic and are of normal intelligence. Your mental and emotional states are not such as to attract the principles in R v Tsiaras[2] and R v Verdins.[3] Your health and age, of course, are highly relevant on the question of sentence and the burden that imprisonment will impose upon you.[4]

20 The principles applicable to sentencing elderly persons are well known and need no rehearsal by me.[5] In Bazley,[6] the Court stated at 158:

"The age of an offender is no doubt a relevant sentencing consideration. It may in some cases be of considerable significance. But it cannot be allowed to be a justification for the imposition of an unacceptably inappropriate sentence."

In Holyoak,[7] Allen J (with whom Handley JA agreed) stated at 507:

"It is simply not the law that it can never be appropriate to impose a minimum term which will have the effect, because of the advanced age of the offender, that he may well spend the whole of his remaining life in custody."

Of course there is truth in the observation of King CJ in R v Hunter[8] at 110:

"A sentencing judge cannot overlook the fact that each year of a sentence represents a substantial proportion of the period of life which is left to him."

21 I thus turn to the principles and factors guiding the sentences to be imposed upon you.

22 Of the principles of sentencing, condemnation, punishment and general deterrence have especial application to you. Condemnation, because the Court and the community condemn your vile and parasitical conduct. Punishment, because you are to be punished for that conduct and in particular for your gross and repeated breaches of trust and of duty. General deterrence, because the courts must do what we can to deter other abusers from conduct which breaches trust and which scars victims for life. Special deterrence here plays little part because of your age and the length of sentence it is necessary to impose upon you. For like reason, reformation, almost always of significance in sentencing, here plays little part.

23 As a matter of statute, upon being sentenced to a term of imprisonment upon counts 1 and 2 you fall to be sentenced as a serious sexual offender for the twenty-six remaining counts on the presentment, other than count 13 which is formally not a sexual count although it occurred in a sexual context. I declare you to be a serious sexual offender and direct that that declaration be entered in the records of the Court. The declaration that you are a serious sexual offender, being made pursuant to s.6B(2)(a) Sentencing Act 1991, carries with it the principle that the protection of the community is to be regarded as the principal purpose for which the sentence is to be imposed (s.6D(a)). It also involves that the Court may, in order to achieve that purpose, impose a sentence longer than that which is proportionate to the gravity of the offence (s.6D(b)). In this case, as with the principles of special deterrence and of reformation, s.6D(b) is largely theoretical because on the basal principles of condemnation, punishment and general deterrence the proper sentence to be imposed leaves no scope for further sentence consequent upon s.6D(b) Sentencing Act 1991. I do not act under s.6D(b) in this sentence.

24 There are two factors which substantially reduce the sentences which otherwise I would impose upon you. The first is your age. You are now 76 years 4 months of age. That is a matter of central significance in determining the proper sentence, both on each count and on the total effective sentence and its non-parole period. The principle is well entrenched in the law, and rightly so, that advanced age of itself does not involve the imposition of an inappropriately lenient sentence. If persons such as you commit crimes over many years and only cease when they are apprehended in old age, the law does not reduce the proper sentence because the person sentenced is likely or certain to die in custody. Were it otherwise, the proper principles of sentencing, including condemnation, punishment and general deterrence would be deflected or negated.

25 Even so, given your age and the mathematical consequence of sentencing you upon these 29 counts, I have reduced the sentences to be imposed on you on each count by reason of your age and also your health, and I have reduced the total effective sentence and non-parole period to be imposed, by reason of your age and also your health.

26 The second factor which substantially reduces the sentences to be imposed upon you is your pleas of guilty to these offences, not only before this Court but in the Magistrates' Court and at the earliest opportunity. Pleas of guilty properly are to be met with reduced sentences. The quantum of reduction varies according to relevant factors. A plea of guilty in the face of overwhelming evidence, as here, warrants a lesser reduction. A plea of guilty which bespeaks genuine remorse for the offending and for the pain inflicted upon the victim, warrants a reduction and can also sound into the factors of rehabilitation. I note your answer at D.146 in a conversation with E recorded on 12 April 2007 wherein you stated "I'm terribly sorry and I want them to forgive me one day if they will". However, I consider you have but limited genuine remorse. Your remorse is principally for the position in which you now find yourself. You continued committing offences until your conduct was revealed by others. However, I do take centrally into account that your preparedness to plead guilty from the outset has saved the victims from the trauma of court proceedings. It has not saved the victims the trauma of your criminal conduct; nor the trauma of police investigation; but it has saved them the trauma of court proceedings, both in the Magistrates' Court at committal and in this Court. Your pleas of guilty also have saved the expense and administration of contested trials. Even so, Mr P, you have abused eight separate victims, from two generations, from three families, over a period of 37 years. Your victims were of most tender years. You were in a position of paternal trust. You stopped only when your conduct was revealed. You are a long-term predator.

27 I express my thanks to Mr Brown of counsel for the Director and Mr Gwynn of counsel for the prisoner for their preparation and their submissions. Not only have they each fully and properly represented the parties, but they both have materially assisted the Court in marshalling and reviewing the substantial factual and legal material arising in this case.

28 Mr P, pursuant to s.6(1) and s.7 Sex Offenders Registration Act 2004 you are a registrable offender. By s.34(1)(c)(i) of that Act the length of the reporting period in your case is life. I shall not require that you sign and acknowledge the relevant Registration Form now in Court. That can be done later.[9]

29 Pursuant to s.464ZF(2) Crimes Act 1958 I have directed that you provide a forensic sample.

30 Pursuant to s.18(1)(c) Crimes Act 1958 I declare that you have served 55 days in pre-sentence detention and I so certify.

31 The maximum penalties for the relevant offences are or were as follows:

(a) Incest: 20 years' imprisonment until 1 September 1997; thereafter 25 years' imprisonment;

(b) Carnal knowledge of a girl under ten years: 20 years' imprisonment;

(c) Indecent act with a child under sixteen years: 10 years' imprisonment;

(e) Indecent assault on a girl: 5 years' imprisonment; and

32 For purposes of exposition, I have set out the history of these matters chronologically. However, given the vast numbers of offences committed over 37 years, in the interests of clarity I state the sentences imposed in relevant offence categories.

33 Having taken into account all that can be said on your behalf, notably your pleas of guilty and your now advanced age, I sentence you as follows.

34 On each of the six counts of incest - counts 7, 8, 19, 20, 26 and 30 - I sentence you to 10 years' imprisonment.

35 On each of the two counts of carnal knowledge of a girl under the age of 10 years - counts 5 and 12 - I sentence you to 10 years' imprisonment.

36 On each of the four counts of indecent acts with a child under 16 years - counts 24, 27, 28 and 29 - I sentence you to 5 years' imprisonment.

37 On each of the eleven counts of indecent assault on a girl - counts 1 to 4, 6, 9 to 11, 14, 15 and 17 - I sentence you to 2½ years' imprisonment.

38 On each of the five counts of indecent assault - counts 16, 18, 21, 22 and 23 - I sentence you to 2½ years' imprisonment.

39 On the count of common assault - counts 13 - I sentence you to 2 years' imprisonment.

40 The sentences imposed upon you are thus generally one-half of the statutory maxima. In particular, I have taken into account on the one hand the seriousness and extent of the offences and on the other hand your age and your pleas of guilty.

41 The provisions of Part 2A Sentencing Act 1991 dealing with serious offenders, notably s.6E, provide that unless otherwise directed by the Court, each sentence imposed upon a serious offender, which, pursuant to s.6F(1) I have declared you to be, be served cumulatively. Because of the vast number of criminal offences you have committed, plainly it is necessary that I otherwise direct. Also you are 76 years of age. Accordingly, I direct that the individual sentences of imprisonment imposed upon you for these offences not be served cumulatively. I direct that they be served concurrently or partly concurrently as stated hereunder. In order to achieve a proper and not excessive total effective sentence, on the ten-year sentence counts (incest and carnal knowledge) I order concurrency of sentences in relation to individual victims. Thus the sentences on counts 8 (incest) and 5 (carnal knowledge) are wholly concurrent with the sentence on count 7 (victim J); and the sentence on count 20 (incest) is wholly concurrent with the sentence on count 19 (victim L.J.).

42 The direction that sentences be served concurrently or partly concurrently does not involve a finding that individual offences do not matter or that victims do not matter. On the contrary, every offence matters, and every victim matters. An order for concurrent or partly concurrent sentences simply acknowledges the factual reality that one person will serve the sentences imposed. In your case it also acknowledges that you are 76 years of age.

43 The orders hereunder for cumulation and concurrency necessarily bear an artificial air. That is because the vast number of criminal offences you committed over many years do not translate proportionally into one sentence. The guiding principle here of formulation of cumulation and concurrency is that each discrete sentence is appropriate and the totality befits one person to serve the sentences.

44 Pursuant to s.16(1) Sentencing Act 1991 I order and direct as follows:

(a) the sentences on each of the five counts of incest - counts 8, 19, 20, 26 and 30 - be served concurrently with the sentence imposed upon count 7, except that one year of each of the sentences on counts 19, 26 and 30 be served cumulatively upon the sentence imposed upon count 7 and upon all the other sentences imposed;

(b) on the two counts of carnal knowledge of a girl under 10 years - counts 5 and 12 - the sentences be served concurrently with each other and with all the other sentences imposed except for one year on count 12 which is to be served cumulatively upon all the other sentences imposed;

(c) on each of the four counts of indecent act with a child under 16 years - counts 24, 27, 28 and 29 - the sentences be served concurrently and with the other sentences imposed, except for six months of the sentence on each of counts 24, 27, 28 and 29 which are to be served cumulatively upon each other and upon all the other sentences imposed;

(d) on each of the eleven counts of indecent assault on a girl - counts 1 to 4, 6, 9 to 11, 14, 15 and 17 - the sentences be served concurrently with each other and with all the other sentences imposed, except for one year of the sentence on count 1, which is to be served cumulatively upon all the other sentences imposed;

(e) on each of the five counts of indecent assault - counts 16, 18, 21, 22 and 23 - the sentences be served concurrently with each other and with all the other sentences imposed, except for six months of the sentence on count 16, which is to be served cumulatively upon all the other sentences imposed; and

(f) on the count of common assault - count 13 - eighteen months of that sentence is to be served concurrently with the other sentences imposed and six months is to be served cumulatively upon all the other sentences imposed.

45 The twenty-nine counts on the presentment properly proceed in chronological sequence. However, again for purposes of clarity of understanding, the above orders for cumulation may be summarised as follows:

(a) on the first count of incest (count 7): ten years' imprisonment;

(b) on three other counts of incest: one year's cumulation each;

(c) on one count of carnal knowledge: one year's cumulation;

(d) on the four counts of indecent act with a child under 16: six months' cumulation each;

(e) on the eleven counts of indecent assault on a girl: one year's cumulation in total;

(f) on the five counts of indecent assault: six months' cumulation in total;

(g) on the count of common assault: six months' cumulation.

46 The total effective sentence imposed upon you is thus eighteen years' imprisonment.

47 In this matter you pleaded guilty to the counts on 15 May 2008 but the plea hearing properly so called commenced on 5 August 2008. Thus the provision of s.6AAA Sentencing Act 1991 applies to this sentence (s.2(5) Criminal Procedure Legislation Amendment Act 2008 and s.135 Sentencing Act 1991). Pursuant to s.6AAA(2) I declare that but for your pleas of guilty to each count I would have sentenced you to a total effective sentence of 25 years' imprisonment with a minimum term before eligibility before parole of 21 years' imprisonment and direct that that declaration be noted in the records of the Court. By reason of your pleas of guilty I have reduced the total effective sentence to be imposed upon you by seven years and the minimum term before eligibility for parole by nine years. The additional differential of two years in the respective minimum terms is because your pleas of guilty have especial relevance to the setting of a minimum term which term especially involves therapeutic considerations of release. I have reduced the sentences on each count by the order of one-third on account of your guilty plea. This does not involve double reduction: the formulation of individual count sentence and that of total effective sentence and minimum term address different sentencing perspectives.

48 Mr P, for the twenty-nine counts to which you have pleaded guilty I sentence you to a total effective sentence of eighteen years' imprisonment. I direct that you serve a minimum term of twelve years' imprisonment before becoming eligible for parole.

[1] See Ryan v R (2001) 206 CLR 267 notably at 295 [94] per Kirby J

[2] [1996] VicRp 26; (1996) 1 VR 398

[3] [2007] VSCA 102; (2007) 16 VR 269

[4] R v Van Boxtel [2005] VSCA 175

[5] From Bazley (1993) 65 A.Crim.R. 154 to DPP v RAL [2008] VSCA 140. See also R v ALP [2002] VSCA 210, DPP v DCR [2004] VSCA 103, R v Saw [2004] VSC 117, R v Kovac [2006] VSCA 229; (2006) 166 A.Crim.R. 358, R v RGG [2008] VSCA 94, R v CLP [2008] VSCA 113, and the authorities and texts referred to in DPP v Kien [2000] VSC 376 at [16] - [18]

[7] (1995) 82 A.Crim.R. 502

[8] (1984) 36 SASR 101

[9] Sex Offenders Registration Act 2004 s.50(2)(a) ("as soon as practicable"); Sex Offenders Registration Regulations 2004 R.14(1).