DPP v Sayer [2017] VCC 753

3 Caroline Reid is now deceased, however, in her statement to police sworn on 28 July 1984, she referred to waking at about 12.30 am with someone [you] standing at her bed with a torch, then hitting her multiple times. She pretended she had passed out and you raped her and she felt, she said, very upset.

5 The complainant was born on 22 March 1960, she passed away on 19 March 2010. She did however, as I have said, make that police statement regarding this offending on 28 July 1984, which appears in the depositions (p.444).

6 You were born on 2 April 1967 and were 17 years of age at the time of this offending.

7 In the early hours of 28 July 1984, you broke into Caroline's flat in Caulfield. She was alone and asleep in her bed (Charge 1, burglary). You then assaulted and violently raped her (Charge 2, rape). In particular, you threatened to stab her and struck her hard a number of times to the head and neck. As a result of the repeated violent blows, Caroline fell from the bed onto the floor.

8 You removed her underpants and attempted to put your penis into her vagina from behind, but were unable to. You then masturbated yourself, then succeeded in penetrating Caroline's vagina with your penis from behind as she lay on the floor. You ejaculated inside her vagina and during this rape you said to her "Feels good, doesn't it?"

9 You then left Caroline's flat and took with you her purse, keys and a telephone extension cord. Caroline threw a blanket over her otherwise naked body and while in significant pain and distress, sought help from a neighbour, whom she told that she had been raped. As a result, 000 was called and police attended.

10 A medical examination of Caroline was conducted at the Queen Victoria Hospital at 3.00 am on 28 July 1984. The medical examination revealed:

(i) Extensive fresh bruising around her right ear, extending to the right lower jaw and onto the right side of her neck;

(ii) Marked bruising in the region of the posterior aspect of her neck;

(v) Contusions on the chest and tips of each elbow;

(vi) Mild bruising and mild tenderness over the region of the left loin and extending to the left lower ribcage.

11 At the time of that examination, spermatozoa was observed on a vaginal swab. Urethral and cervical swabs were also taken.

12 DNA analysis subsequently conducted in 2012 and 2014 provided "extremely strong support" for the proposition you were the source of semen on the urethral and cervical swabs.

13 Your fingerprint was located on the balcony of Caroline's flat.

14 On 16 July 2014 you participated in a recorded police interview. You denied raping Caroline although admitted to having lived in the same block of flats at the relevant time. You explained the presence of your fingerprint on the balcony as due to you having committed burglaries in that block.

15 From the prosecution opening, it appears the prosecution of you was not regarded as viable at the time of the statement of complaint being taken from Caroline because of the then perceived lack of evidence. In particular, the fingerprint branch was not willing to record a match in a court proceeding of what they regarded as a "partial fingerprint only" (see statement by Alan Carlisle dated 30 January 2017).

16 Following the plea hearing on 31 May 2017 I had my associate contact both parties regarding two matters I neglected to discuss with them regarding your offending. From replies to the email forwarded to both and responded to by both, it was accepted your failure to use a condom was an aggravating feature of your offending (R v Khem[2]).

17 I do not however, sentence you upon the violence (over and beyond) that to commit the rape, being another specific aggravating feature. Rather that violence is part of the overall gravity of your offending in Charge 2.

18 You have a concerning criminal history, and prior to this offending you had appeared at the Melbourne County Court on 1 November 1982 on three charges of aggravated rape and were, with conviction, sentenced to be released on a bond in the sum of $300 for three years. There was an appeal by the Director of Public Prosecutions in relation to that sentence and at the Supreme Court in Melbourne on 2 February 1983 that appeal was allowed and you were sentenced to a term of detention in a Youth Training Centre for a period of three years.

19 The prosecution provided details of that offending (Exhibit A), which occurred on 24 April 1982. The detailed summary of that offending reveals the presence of a knife and violence. In your record of interview you admitted the presence of a knife, knew what you did to the victim was wrong and against the law, but that you thought it was a 'big joke' at the time.

20 You also have a lengthy history of subsequent court appearances (Exhibit 2), which I discussed with your counsel. In particular, sexual offending that occurred around the time of this offending before me, albeit not dealt with until years later. You were sentenced on 12 December 2008 by her Honour Judge Wilmoth on charges of aggravated burglary, aggravated indecent assault and aggravated rape for offending that occurred on 23 October 1984 when you were also 17 years of age. Her Honour, in her sentencing remarks, noted at that time you had absconded from Malmsbury whilst serving the three year youth detention imposed in 2012.

21 I note that your offending before me occurred in July 1984, approximately some three months prior to the offending dealt with by her Honour. It could seem on the chronology you had likely also absconded at the time of your offending before me, or at least were under the supervision of Youth Justice at the time, and I shall return to this later in these sentencing remarks.

22 The victim of your subsequent offending on 23 October 1984 was also in bed asleep before being raped by you. You were not arrested until 13 November 1984, that is approximately two months later, at approximately 350 metres from the house of a further aggravated rape. You were not, however, charged with the rape of the victim in the matter before her Honour until February 2007 following a DNA match.

23 Her Honour found that you were an absconder and had served a sentence for previous rapes, an aggravating feature.

24 Her Honour was aware when sentencing you, as indeed I am as I discussed with counsel, your offending occurred when you were young (R v Better[3]). Her Honour noted, as do I, in that case however, significant rehabilitation had occurred between that offending and sentence, unlike you.

25 Her Honour, mindful of Better and R v PJB[4], noted your youth, however noted you did not have the benefit of demonstrated rehabilitation. You had offended some ten days after that in October 1984, referrable to offending on 2 and 3 November 1984, and the circumstances of your offending meant there was a decrease in the benefit of your youth as a factor going to leniency. These sentencing remarks also have some relevance when sentencing you for your offending in July 1984 although I do note these are subsequently dealt with.

26 You appeared at the County Court on 24 April 1986 before his Honour Judge Ogden for offending of aggravated indecent assault and attempted aggravated rape and you were then, at sentence, 19 years of age. The victim in that offending was also asleep in bed. I have read his Honour's sentencing remarks and also a pre-sentence report prepared by William Belbin-Canhan dated 14 June 1985 (also contained within Exhibit A). That report provides the following information: as at the date of that offending on 2-3 November 1984, the author referred to your 2012 prior matter and that a file note indicated at the time of that offence you were a resident in a Departmental Youth Welfare Service Hostel.

27 The author also noted that "soon after being paroled (February 1984) [you] were apprehended for further offences. The officer supervising [your] parole reported [you] did not attend supervision meetings and was subsequently breached." This tends to confirm that your offending before me occurred either while you had absconded, as per October 1984 and November 1984 offending, or at least breached supervision on youth parole.

28 Ms Kaddeche conceded your sexual offending before me was not an isolated incident during your teenage years. She submitted, however, all your sexual offending had occurred in your late teens when you had not fully matured. That may be so, however, your sexual offending was persistent and repeated in 1984, albeit of course, I am well aware there is only one prior matter before me.

29 Ms Kaddeche conceded you would have been aware when you were detained in a Youth Justice Centre that it was due to your sexual offending and would have been in no doubt of the potential ramifications upon your liberty should there be similar offending by you.

30 Apart from this 'dated' sexual offending, your subsequent criminal history is extensive, albeit I notice a gap between approximately 2003 and 2006 and elsewhere within it. Further assistance in that regard was provided in written further submissions on your behalf filed by Ms Kaddeche, dated 8 June 2017 (Exhibit 6, paragraph 1). Interspersed with custody between 18 May 1985 and 1 November 2012, you spent a total of approximately 7 years and 6 months in the community. Your continued offending (non-sexual), is relevant when assessing your rehabilitation prospects, mindful as I am also of your non-offending since 2011. Ultimately, I have at best guarded optimism regarding your rehabilitation prospects. Having said that, I am mindful of some protective aspects that are now in your life, and absent in the past, including a supportive partner, employment opportunities and isolation from negative peers through your place of residence.

31 There was a report before me from Ms Carla Lechner, Clinical Psychologist, dated 26 May 2017. It was noted in her report that all your sexual offending occurred in the 1980s when you were a teenager, and that you were 17 years of age at the time of that offending. She observed, as do I, that since that time there had not been any further sexual offending, despite your other lengthy criminal history.

32 Ms Lechner considered your offending appeared to be linked with substance abuse and underlying psychological disturbance relating to your formative years and sense of abandonment by your family.

33 You described your sexual offending as opportunistic, that is, women simply being present in the homes you were robbing. You told Ms Lechner you were confused about sexual matters and probably felt some degree of entitlement in respect of taking advantage of your victims. Since then, you had completed a Sex Offenders Program in Marngoneet Prison, which you said you had found extremely helpful.

34 Details were provided within Ms Lechner's report of your personal history.

35 You are 50 years of age at time of sentence and, as I have said, were 17 at the time of this offending, a matter of which I am acutely aware. You were the only child of your biological parents and you had never met your biological father. Your mother re-partnered when you were about 3 years of age. You have a half-sister, although you told Ms Lechner you did not have contact with any family members.

36 You have never married, and you do not have any children. In the past five years you have been in a relationship with Ms Lynette Dudkowski, who has an adult daughter from a previous relationship.

37 You grew up in the Essendon area, and attended a number of primary schools. At one stage it was considered you may have had Autism Spectrum Disorder, however, it seems, that was not formally diagnosed. You also attended three high schools, completing your education at boys' homes.

38 Your home life was characterised by exposure to domestic violence by your stepfather, as both a victim and a witness, in particular when he was intoxicated. DHHS became involved, and you were made a ward of the State. You have had no contact with your family thereafter, and have had to fend for yourself. You referred to also having, in the past, been sexually assaulted when you were approximately 5 to 6 years old, although you did not disclose the abuse for fear you would not be believed.

39 You reported you were soon in trouble and in and out of boys' homes, including Baltara and Turana. By age 15 you were living in a boarding house. You had employment for a short time in a wrecking yard in Coburg, but were then back in trouble and back in custody. You began abusing drugs and alcohol.

40 At the age of 16, you were imprisoned at Pentridge and later transferred to Malmsbury. You said you escaped from Malmsbury and much of your sexual offending occurred prior to you being re-remanded. On your estimate, you had spent approximately twenty years in prison in total.

41 Your employment history to date had been somewhat limited, although you reported you always worked when in prison. Your most recent employment was at the Venus Bay Hotel, although you were currently unemployed, hoping to obtain work on a dairy farm depending upon the outcome of this hearing. You reported a number of physical injuries you sustained over a lifetime of criminal activities, for which you take various medications. At interview, Ms Lechner noted you were prescribed the antidepressant, Cipramil.

42 In her opinion, you had been subject to complex developmental trauma resulting in attachment issues, and had been the victim of sexual assault as a young child and young adolescent. I accept you had what can be described as a disadvantaged/dysfunctional background.

43 Although Ms Lechner did not formally assess you, you impressed as being of average/low average intelligence. You said you had found the "empathy" module in the sex offenders course particularly insightful and a real trigger to gaining an insight into the effect of your behaviour on others. In the past you would block out internal distress with substance abuse. You now talk to your partner when things bother you.

44 Regarding your relationship with others, your primary attachments had been ambivalent at best. You found it hard to establish and maintain long-term intimate relationships, although your current relationship represented a change in how you related to women.

45 In terms of your drug and alcohol history, you stated you began smoking marijuana and using medication in your early teenage years, then began to abuse speed from the age of 13 until 2001, using heavily at the time of this offending. By the time you were 20, you were co-using amphetamines and heroin, also ecstasy and cocaine on a regular basis in your 20s, although you denied use of ice and GHB. You attended a rehabilitation facility in Warrnambool for a brief period subsequent to 2001. You are currently prescribed Methadone, Lyrica, Voltaren and, as I have also said, Cipramil.

46 Alcohol had been an issue for you between the ages 13 and 17, before you began to increase your drug use.

47 Assessment for Depression and anxiety indicated you fell into the "mild" range.

48 Regarding your offending behaviour before me, you made no attempt to shirk responsibility or minimise the seriousness of your offending. You said your initial denial was due to fear of being returned to prison, as you had also served a jail sentence for similar offences committed around the same time, also solved later through DNA.

49 As far as you could recall, you said of this offending you had previously broken into the victim's home and stolen goods. That you were living in the same apartment block on a part-time basis. You admitted that:

"... at the time I didn't think it was a really bad thing ... I could never do that now, I hate it... I don't know why I did it... looking back maybe it was me trying to gain some power in my life or maybe I felt entitled ... ."

50 You reported your experience of sex at that time as being really confusing and mostly of a violent nature, and this would also be consistent with your other sexual offending in October and November 1984.

51 You said you were appalled by your past sexual offending and acknowledged the victims must have been terrified. You reported it was not until you were in adult prison subsequent to your second sexual offence that you fully realised how serious your offending was.

52 Assessment was undertaken by Ms Lechner regarding your risk of sexual re-offending. Using the Static-99 Assessment Tool, you fell into a high risk category. Using the SPI-20 Assessment Tool, and the Static-99 Assessment Tool, in the opinion of Ms Lechner, while at face value you presented as a high risk of re-offending, you had not been involved in any further sexual offending for over thirty years and, as such, you would now be a low/medium risk of future sexual offending and I am aware of this.

53 Ms Lechner identified a number of protective factors currently in your life, such as your long-term relationship, completion of the Sex Offenders Treatment Program and abstinence from substance abuse. I am also aware of these.

54 But as I have said, ultimately I have guarded optimism regarding your rehabilitation prospects. Your subsequent criminal history gives me little comfort in that regard, however again I note your sexual offending was many years ago.

55 In sentencing you, however, I must seek to maximise your chances of rehabilitation as they may be. In that regard, I am conscious you have not offended in the past few years and that you have developed a positive life with your current partner.

56 Also tendered was a medical report from Dr Casson, Foster and Toora Medical Centre dated 26 May 2017. He had been treating you since April 2015. You had a number of medical conditions, right knee osteoarthritis, neck and arm pains, Depression, and were currently on a Methadone program. A number of medications currently prescribed was attached.

57 There were two Victim Impact Statements before me. From Paula Goodwin,[5] the twin sister of Caroline, and from Kathryn Giles,[6] Caroline's cousin. As I discussed with the prosecutor, I must be careful to not take into account inadmissible parts of victim impact statements. Victims are not those who are familiar with the legal profession and I am sure they do not perhaps fully understand or appreciate that only admissible material can be taken into account by a sentencing judge. I, however, must be very careful about this.

58 Paula Goodwin says she often thinks about the impact of your offending upon her sister, Caroline.

59 Kathryn Giles was aware of your offending at the time of it. She described receiving a phone call from Caroline's husband, and being told Caroline's unit had been broken into and that she had been sexually assaulted and was in hospital. Kathryn spoke to Caroline shortly afterwards and she was very upset and not wanting family members to know, and urged that Kathryn not tell anyone.

60 The effects upon a victim are a relevant sentencing consideration (s5 Sentencing Act 1991), however, I must be mindful and am mindful of inadmissible material, and also must be very careful that I do not allow the effects upon victims to swamp the sentencing process.

61 You have pleaded guilty to these charges and you are entitled to have that fact taken into account in your favour, and I do so. You have, by your pleas, spared the Court the time and cost of a trial, although I note there was a contested committal hearing in this matter for reasons I can appreciate, given the evidence that was then against you. In the circumstances however, I accept your plea of guilty indicates remorse for your offending.

62 Ms Kaddeche, as previously stated, referred to you now being 50 years of age at time of sentence and 17 at the time of this offending. Of course your then youth is a relevant sentencing consideration, however, as I discussed with counsel, yours was not a case of, in the interim, leading a crime-free life, in fact quite the opposite.

63 Ms Kaddeche referred to a gap in your prior criminal history between 2003 and 2006 where you did not come to the attention of the courts, conceding however that otherwise you have been in custody for various periods at various times and in total for most of your life.

64 Ms Kaddeche referred to the progress of this matter and you ultimately being charged with it. That you were released on parole from the sentence imposed on 12 December 2008 on 1 November 2012 with parole concluding on 30 April 2015, I note without breach. You were charged with offences relating to Caroline on 27 April 2015, just three days before the conclusion of parole. You were spoken to by police on 17 July 2014, although you were not charged with any offences until April 2015, as I previously stated. There had been a significant delay between this offending and you being questioned and then charged with these offences.

65 Ms Kaddeche further referred to this in Exhibit 6 recently filed (paragraph 6). Given the nature of this being a cold case and the DNA match only recently obtained in 2012, that delay is not surprising. You managed to avoid detection for this offending over a considerable time. I do, however, note there had been some delay between the DNA match and you being charged of some three and half years approximately. However, from the depositional material, it would appear additional material and statements were then being obtained by the prosecution. Such a delay does not, in my opinion, mitigate your sentence significantly, rather minimally.

66 Ms Kaddeche submitted that chronology had also led to a loss of concurrency with the 2008 offending dealt with at Melbourne County Court on 12 December 2008. In my opinion, in the circumstances of this case and the chronology of it, and subsequent DNA match, such only minimally impacts upon the sentence I could consider appropriate for your offending.

67 Not surprisingly, Ms Kaddeche relied on the last five years of your life to the present, where there had been no offending and no court appearances. I accept that that is so and also relevant when assessing your rehabilitation prospects.

68 Ms Kaddeche referred to your dysfunctional upbringing and I accept that is so, as I said. That you had been made a ward of the State when you were very young, and that your childhood was also marred by sexual abuse of you.

69 Ms Kaddeche referred to you being in and out of boys' homes and in a custodial environment since 1983, effectively institutionalised from the time you were made a ward of the State.

70 She referred to your lack of contact and support with your biological family since your very early teens. That you had, however, since release from custody on 1 November 2012, built a life for yourself with Lynettte Dudkowski. Ms Dudkowski had known you for a number of years prior to that date but became re-acquainted with you after your most recent release from custody. She was present in Court to support you during your plea hearing, as was her mother, Dawn Dudkowski.

71 Evidence was given by Dawn Dudkowski. She had known you for approximately 25 years, as an associate of her daughter. In the last five years, she had become re-acquainted with you, seeing you approximately two to three times a year. You and her daughter, at one stage, moved to Venus Bay, were engaged and planned to marry.

72 In the opinion of Dawn Dudkowski, you had made an excellent effort towards rehabilitation and she was able to judge that from her own experiences of life. She believed your rehabilitation was genuine. She was in regular phone contact with her daughter once to twice a week, and also spoke to you by phone.

73 When she was in the presence of you and her daughter, she had not seen any concerning behaviour by you. She was there when police attended your house and took you for interview. You did not give the police any trouble, you just went with them.

74 Ms Kaddeche said you and your partner were now living at a dairy farm. Whilst you were currently unemployed, you had recently been working on and off as a chef. Ms Kaddeche submitted this was the closest you had been to normality in your entire life. I accept that that may well be so.

75 Your initial move to Venus Bay, in Ms Kaddeche's written outline, was to try and get away from negative influences, as you had battled with a drug addiction for a number of years, now monitored by the Methadone program. You had been in employment in the past five years and you were proud of that, and that had assisted your stability in the community.

76 Ms Kaddeche referred to your longstanding medical and mental health issues, although conceded she was not relying on the principles in R v Verdins & Ors[7] and such, in my opinion, was an appropriate concession. Ms Kaddeche was relying upon your poor health, whilst not Verdins as relevant to general sentencing principles. You have been diagnosed with a Major Depressive Disorder arising from your dysfunctional and abusive childhood and adolescence and had been seeing a general practitioner since your release from parole in April 2015. You are treated for a number of physical ailments, also depression, and prescribed with appropriate medication.

77 I accept your time in custody will be more difficult for you as a result of your medical and health issues and have taken that into account, consistent with general sentencing principles, in imposing an appropriate disposition.

78 Ms Kaddeche submitted this matter resolved prior to trial, effectively on the day of the trial when this matter was placed in the Reserve List. She submitted however, there had been attempts at resolution prior to trial and prior to the committal hearing in February of 2016. Of course, your plea of guilty is a relevant consideration and in mitigation of sentence.

79 Ms Kaddeche submitted when sentencing you, given your criminal history relevant to sexual offences including those subsequent, the sentences for sexual offending which have been imposed prior to today's date (s.6D Sentencing Act 1991) would apply when sentencing you. That is, you are to be sentenced as a serious sexual offender on Charge 1 if I am satisfied that such was committed for the purposes of a sexual assault, and on Charge 2, the offence of rape. You stated to Ms Lechner, your sexual offending was opportunistic in terms of women being present in homes you were robbing.

It would seem your primary intention was possibly to enter the house and steal.

I note the offending before me was also the first occasion in 1984 you sexually offended, and your prior offending in 1982 did not involve burglary of a private home.

80 As such, I am not satisfied you should be sentenced on the basis you intended to commit a sexual offence (Charge 1). I do, however, accept when sentencing you, you are to be sentenced as a serious sexual offender in relation to Charge 2 and I direct that it be entered into the records of the Court you have been sentenced on Charge 2 as a serious sexual offender.

81 Pursuant to s.6E Sentencing Act 1991, in sentencing you as a serious sexual offender, I must regard the protection of the community as the principal purpose for which sentence is imposed. The prosecution was not seeking a disproportionate sentence and I am also of the opinion I can appropriately sentence you without the need to impose a disproportionate sentence.

82 When sentencing pursuant to s.6 Sentencing Act 1991 I am mindful of R v HMcL[8] recently considered and confirmed in DPP v Dalgleish[9], which constrains, but does not eliminate, the application of the principle of totality.

83 Ms Kaddeche's primary submission was that I could appropriately sentence you for this offending by imposing a wholly suspended sentence. Her secondary submission, without abandoning her primary submission, was that I could partially suspend a term of imprisonment.

84 As I understood her submission, a period of parole would not assist your rehabilitation prospects or be necessary as you had already completed sex offender programs when recently on parole and you would simply be "retracing your steps". And in that regard, I received a further report provided by her which indicates you participated in the Modular Management & Intervention Program between February 2012 and September 2012, dated 19 September 2012 (Exhibit 7).

85 Turning to the Sex Offenders Registration Act 2004, Ms Kaddeche submitted relying on the decision of Bowden v R[10], I should not be satisfied that you pose a real risk of further sexual offending, relying as she did upon the report of Ms Lechner and as such, given the onerous nature of the order, I should not, she said, be satisfied beyond reasonable doubt you pose a real risk as defined in Bowden and that the order should not be made.

86 Ms Kaddeche conceded your rehabilitation prospects were guarded, however, bearing in mind what was currently in place, she urged I conclude your rehabilitation prospects were good. In my opinion, as I have said, I have concerns about your rehabilitation prospects, given your lengthy and extensive criminal history and of course your relevant sexual offending, although I note no further offending in that regard since 1984. I do also of course note that you have, in the last five years, made some efforts towards your rehabilitation and there have been some positive aspects to your life which, if they continue, provide hope that you will be eventually successfully rehabilitated.

87 Mr Slim, on behalf of the prosecution, referred to a number of factual matters that he clarified and also referred me to the folder of material prepared by his instructors relevant to your other sexual offending, some of it as I have again noted dealt with subsequently.

88 Addressing Ms Kaddeche's submission on sentence, Mr Slim submitted that to impose either a wholly suspended sentence or partially suspended sentence would lead to sentencing error.

89 Regarding Charge 1, he urged I should be satisfied that the burglary committed was with the intent to sexually assault and that I should find for the purposes of the serious sex offender provisions, you should also be sentenced on Charge 1 a serious sexual offender. I have already referred to my decision in that regard and I do not so sentence you.

90 Turning to the sex offenders register, Mr Slim submitted considering your history and recent offences involving commission of burglaries as recently as May 2011 and July 2010, that there was a real risk and that categorisation as low to medium was not the end of my analysis of your assessment. I agree.

91 Regarding your rehabilitation prospects, Mr Slim submitted that whilst there was no evidence to contradict your lack of involvement with the criminal justice system in the last five years, your history prior to that was very concerning.

92 Regarding your age at the time of this offending of 17, he conceded it was relevant you were young at the time of it. On the other hand, he submitted whilst you were now being dealt with for it at the age of 50, you had simply "got away with it" until now.

93 As well as matters personal to you including your prospects of rehabilitation as I find them to be, I must also consider the need for general deterrence which is of importance in a case such as this.

94 There is also the need for specific deterrence when sentencing you. You did, at the time of this offending, have a relevant prior court matter for offences of a like nature, i.e. involving sexual offending, although I note the factual circumstances of that offending is different in a number of aspects from the offences before me.

95 In my opinion, to accede to either submission made by Ms Kaddeche regarding disposition would not adequately or appropriately reflect all sentencing considerations in this case.

96 Being mindful of the absence of further sexual offending since 1984, I do however direct you be subject to reporting conditions on the Sex Offenders Register. Rape is a Class 1 offence, risk classification is not the only basis on which such is determined. You have also relatively recently appeared at Court on charges of burglary.

97 I am satisfied the order should be made and that you have been in custody for in total a very significant period between then and 2011. You will be required to report, pursuant to the Sex Offenders Registration Act for seven and a half years, which is correct.

98 I must also consider the question of protection of members of the community from you and bear in mind the likelihood of your re-offending. I remain concerned about that, given your extensive history including repeated sexual offending prior to 1984, but am comforted to a degree by your lack of any offending most recently, apart from some recent burglaries, and I note also one of the charges before me was burglary and that there are some positive supports for you in the community.

99 I am called upon by the Sentencing Act 1991 to manifest the community's denunciation of your conduct and generally to impose a just punishment. I note also in sentencing that the maximum sentences that applied at that time are different from those that currently apply and I sentence you as follows. In particular, relevant to the charge of rape.

100 On Charge 1, convicted and sentenced to 2 years' imprisonment.

101 On Charge 2, convicted and sentenced to 3 years and 6 months' imprisonment.

102 Charge 2 is the base sentence and I direct that 1 year of Charge 1 be served cumulatively upon Charge 2.

103 That results in a total effective sentence of 4 years and 6 months' imprisonment, and I direct that you serve a period of 2 years and 6 months before you are eligible for parole.

104 Pursuant to s.6AAA Sentencing Act 1991, had you pleaded not guilty to these charges and been found guilty of them following jury verdict, I would have sentenced you to a term of imprisonment of 6 years with a non-parole period of 4 years.

105 Pursuant to s.18(4) Sentencing Act 1991, I declare you have spent 13 days in custody - I would like that checked - by way of pre-sentence detention and I direct that that be entered into the records of the Court.

108 HER HONOUR: Up to and including yesterday which was 12 June. The record of interview, 16 July 2014, I just wanted that checked. I have done that.

109 MR SLIM: And that's also confirmed by the Crown, Your Honour.

110 HER HONOUR: Yes, no, I just had to - thank you very much for that. What else? Now is all that clear? Sex offender register applies, yes? All right, that's clear. So Ms Jackson in a moment will approach Mr Sayer with some documents to sign, acknowledging that he's - not acknowledging he's on the order, just acknowledging receipt of the paper work relevant to that. He's not being asked that he wants to be registered, I've made that decision. He's simply being asked to acknowledge receipt of the paperwork. If he doesn't want to sign it, so be it. I think that covers that. Now what else was there, was it clear in relation to the s.6? I did not so sentence on Charge 1 but I did on Charge 2.

112 HER HONOUR: Just so long as that's clear. Now, were there any orders?

116 HER HONOUR: No, excellent. All right, is there - you can go back, Mr Dean, you can go back if you want?

118 HER HONOUR: He's simply being asked to sign for receipt for the paperwork that tells everyone about - tells him about the sex offenders register. Nothing else, I've made the order. And if he doesn't want to sign, so be it. Ms Jackson has to do it, that's her job. Thank you, Mr Dean. Yes, all right. Thank you. You can removed the prisoner, thank you very much.

[2] [2008] VSCA 136; (2008) 186 A Crim R 465 OR [2008] VSCA 136

[3] [2003] VSCA 71

[7] [2007] VSCA 102; (2007) 16 VR 269

[9] [2016] VSCA 148

[10] [2013] VSCA 382