DPP v SLS [2014] VCC 203

5 Some months before the offences were committed, you had been asked by the complainant's mother to stop hugging and kissing her child as the complainant had told her mother that she did not like this. It is not suggested that this type of conduct was of a sexual nature, or involved a sexual interest on your part, as at that time. You desisted from such conduct out of respect for the complainant and her parents' wishes.

6 On 5 August 2012, which was a Sunday, when you were minding the complainant at your home, you and the complainant were in the lounge room and the complainant was watching TV. You pulled down your pants, exposing

7 your penis and said to the complainant "Lick it and open the hole". This gives rise to Charge 1, Indecent act with a child under 16 years.

8 The complainant refused to do this and gave evidence of repeatedly refusing to comply with your request.

9 You then dragged or pushed the complainant by the hand into your bedroom. This gives rise to Charge 2, common assault.

10 You lay her on the bed, pulled her pants down and licked her vagina. This gives rise to Charge 3, indecent act with a child under 16 years.

11 You took photos of her vagina at about this time, which gives rise to Charge 4, producing child pornography.

12 On that same day, you took a photo of the complainant's bottom when she was on the toilet at a time when she said that poo was hanging out. This gives rise to Charge 5.

13 It was alleged by the Crown at trial, that you made admissions to the victim's mother on the night after the offences had been committed. This happened after the victim's parents confronted your wife with the complaint that their daughter had made to them a short time after the offences were committed. In the record of interview, you apologised to the complainant's parents for sexual wrongdoing, but were referring to the fact that you had answered her questions about sexual matters.

14 Your offences Mr SLS are serious, aggravated by the fact that the child was only six years old at the time and you were 58 years old. The offending is further aggravated by the fact that you grossly breached the trust that the victim and her parents had placed in you. I regard Charge 3 as a particularly serious example of this type of offence.

15 Your offending was opportunistic and persistent on the day in question, but I do not find that it was pre-meditated. You had already been placed on notice by the victim's parents, if you had to be, that you were not to be tactile with the victim, but you chose to ignore this on the day of the offences. Further, on the day of the offending the complainant made it plain to you when you were exposing your penis to her, that she did not want you to do this, but you persisted with further offending nevertheless.

16 Your offending must be justly punished in all of the circumstances and denounced. Strong weight must be given to specific deterrence in a bid to deter others from behaving as you have.

17 TW made a victim impact statement on behalf of himself and his family. He describes the devastation that your offending has brought to them and the destruction of his child's innocence because of what you have done. Your offending has profoundly distorted the way that they live their lives, and has impacted on the way he relates to his daughter. He and his wife are now very distrustful of people, which has constrained the complainant's ability to consolidate friendships by attending the homes of others. The complainant has told her father that she hated the day that she gave evidence at court and that she would rather she was dead than having to do this. TW is haunted by the offences you have committed, and it has impacted on his relationship with his wife. Mr TW says that he is heartbroken that he was unable to protect his daughter.

18 You answered all questions put in the record of interview, but you denied any sexual wrongdoing.

19 You conducted a trial and maintain your innocence to the charges. You are entitled to do so, and must not be punished for this. However, such a stance must mean that you have no remorse for the offences and also means that you do not derive a discount which pleas of guilty to the charges would have attracted. I make limited allowance for the fact that you have expressed regret for causing hurt to the victim's family in the context of acknowledging that you spoke to the victim about matters which were inappropriate. I make no finding in your favour for the fact that you spoke to the police and made some admissions against interest, in circumstances where you did not subsequently plead guilty to the offences.

20 I take into account that the period of offending was relatively brief and that there was one victim involved. I also factor in that the child pornography production comprised the taking of two photos and could not be said to have been engaged in for commercial purposes or for dissemination.

21 You have no relevant prior court appearances. There is only one matter which is very dated and which involved shoplifting, for which you received a good behaviour bond. Material in support of your good character was tendered at the plea and I accept that you are of otherwise good character, having generously contributed to your church and to an overseas mission. Your wife also speaks well of you, although, unsurprisingly perhaps, she does not speak of what you told her, when she confronted you with the complainant's allegations and what her assessment of your character is in light of this. However, she does speak of the immense strain that the police investigation and court proceedings have placed on your family, and that one of your children and her husband are struggling to cope with the shame that your situation has brought to the family.

22 You are now 60 years old, and in rather poor health. You suffer from arthritis in the hands, knees and feet. You suffer hypertension and have recently been diagnosed as having type two diabetes. Further, you are suffering from depression and anxiety which symptoms appear to have exacerbated since you were charged and since you were found guilty last year. Professor Carroll psychiatrist saw you recently for the purposes of assessment and report on your mental health and I have taken into account the contents of his report. I have also factored in that your mental health may well deteriorate further whilst you are in gaol. Time in gaol on remand has been most difficult for you as you have been subjected to taunts and threats, and you have been on protection with very limited time to exercise or go outside. You have been fearful of leaving your cell for too long in any event, and keep to yourself. Also, this is your first time in gaol. You have regular visits from your wife but otherwise you are isolated. I was told that you are likely to continue in protection even after sentence. Whilst on remand, you have earned two certificates for courses you have undertaken being for occupational health and safety and food handling. However, your health issues may preclude or limit the work you can do whilst in gaol. You are also most concerned for your wife and family's wellbeing - in particular, for your elderly parents who reside in Malaysia and who do not know of your predicament. You are most concerned that one or other of them might die whilst you are in gaol and you will be unable to attend their funeral. For all of these reasons, time in gaol will be harder for you than for others not in your situation and I have taken these matters into account in mitigation.

23 Further, I take into account that, notwithstanding your profession of innocence, you feel a deep sense of shame in relation to the offences of which you have been found guilty and that this has and will impact on your ability to engage with others in the future, especially members of your family. You have also been cut off from your church which has been the situation for some time, and this has, and will continue to add to your isolation as your previous involvement in this was an important and central part of your life. Your sense of shame is all the more because your offending has led to your wife being cut off from the church also, where she was well respected as an elder of that community. On the other hand, your wife is someone who you can look to for support in the future, which will assist with your rehabilitation. There are others who have offered such support, but Ms Munster frankly indicated that it is unlikely that you will look to them for support, because you do not wish to burden them. As I said in the plea hearing Mr Soo, it is very important that you do take advantage of those who have offered to be there for you, even knowing what you have done, as their help will assist you with rehabilitation and with your future wellbeing.

24 I take into account your background which was set out at the plea hearing and I will not recite it in detail. Suffice to say, you had a happy childhood and have had a happy family life. You have tertiary qualifications and have a fairly solid work history, being employed as an engineer from 1975 to 1993. You stopped working at the Board of Works in 1993 due to the onset of depression and anxiety which was caused by your concerns about being exposed to asbestos. However, you have never been diagnosed with any asbestos related illness. Nevertheless, you have apparently been affected by these conditions, that is depression and anxiety, since this time that you left the Board of Works and you have been in receipt of the disability pension. It would appear that the medication which you have been taking for many years to address depression and anxiety may be inappropriate, which has been pointed out by Professor Carroll. I was told by Dr Chau who was your treating psychiatrist for many years, was not in a position to provide a report as he said there was nothing much he could say. His treatment simply involved writing scripts for medication. I must say that this approach to your treatment is of some concern. I have arranged for Professor Carroll's report to be forwarded to the prison authorities with a request that your medication be reviewed as a matter of priority. It was not put by your counsel that any impairment of mental function that you may have been suffering at the time of the offending, had any impact on your moral culpability or that any allowance ought be made in respect of specific and general deterrence. However, I take into account in a general way, that at the relevant time you were receiving medication from a psychiatrist for depression and anxiety which appears to have been of a longstanding nature. These conditions were confirmed somewhat by your wife, who is a nurse.

25 Although you maintain your innocence, despite the jury's verdict, your otherwise good character, the support of your wife, your lack of relevant criminal history and the salutary experience of gaol at the age of 60 years, lead me to conclude that you have fairly good prospects of rehabilitation. I place some weight on specific deterrence, but for the reasons just referred to, I do not place inordinate weight upon this principle and I place similar weight on the need to protect the community. You are a man of some intelligence and I am sure that you have an appreciation of what will happen if you were to continue to commit offences when released from gaol.

26 After the sentence which I impose on Charge 3, you are to be sentenced on Charges 4 and 5 as a serious sexual offender which will be noted in the records court and there is a presumption of cumulation in relation to these two charges. However, in light of the fact that the conduct in Charge 1 comprises a separate instance of offending, albeit during the same period as the other offences, I intend to make an order for some cumulation upon the base sentence. I have not imposed a disproportionate sentence in order to achieve protection of the community.

27 Mr Shaw submitted that an immediate gaol term was the only appropriate sentence and referred me to a relevant sentencing snapshot for some guidance in respect of sentencing practice, for the offence of indecent act with a child under 16 years. Your counsel most properly conceded that an immediate gaol term was appropriate. Ms Munster submitted that any gaol term need not be lengthy in view of all the matters put in mitigation and that in particular, the non-parole period need not be of undue length so as to enable you to be supervised in the community on parole.

28 I have considered these submissions, and having placed appropriate weight on all relevant sentencing considerations in your case, I have arrived at a sentence which, in my view, serves to adequately address these issues. I just want to correct that I have previously said I think that strong weight had to be given to specific deterrence in a bid to deter others from behaving as you have. That was a slip and I meant to say general deterrence, strong weight must be attached to general deterrence in a bid to deter others from behaving as you have.

30 By reason of your convictions in respect of charges 1,3,4 and 5, you are to be recorded as a registrable offender for eight years. You must report your personal details to the Chief Commissioner of Police annually for a period of eight years. You must first report these details within seven days after your release from custody. Details in writing of these reporting conditions will be served upon you now by my associate. I will ask your counsel to attend to an acknowledgement of that notice, and have you sign it.

31 MS RENOU: Acknowledge receipt of that Your Honour.

33 Secondly Mr SLS, despite your opposition to the making of the S464ZF of the Crimes Act 1958, you oppose the order on the basis that it is not in the interests of justice or in the public interest to make such an order. In view of the fact that DNA had no relevance to the offences of which you were convicted, that was the basis of your opposition to the order, however I am of the view that the order should be made. The offences of which you were convicted are serious and despite my findings in respect of your prospects of rehabilitation, the investigation of any future alleged offending of this nature would be assisted by having your DNA on the police database. Therefore, I make the order because of the seriousness of the offences and because it is in the public interest to make the order. I warn you, that in taking the forensic sample, which will be a sample of saliva by means of a scraping with a cotton swap from the mouth, the authorised officer taking the sample may use reasonable force to do so if you fail to co-operate.

34 You are sentenced to the following periods of imprisonment.

37 Charge 3 - Four and a half years, which is the base sentence.

40 I direct that three months from the sentence on Charge 1 and one and a half months from the sentences on Charges 4 and 5, be served cumulatively with each other and the base sentence producing a total effective sentence of five years imprisonment and I direct that you serve three years imprisonment, before becoming eligible for parole.

41 I declare that you have already served 114 days by way of pre-sentence detention. Please take a seat for a moment Mr Soo. Is there anything arising out of those sentencing remarks?

42 MR SHAW: No Your Honour, I'll just check the figures.

43 HER HONOUR: Well do you want to do that before I leave the Bench Mr Shaw?

44 MR SHAW: Yes, I may, if that's all right. No problem with that, thank you.

45 HER HONOUR: All right, yes thank you. You may remove the prisoner. I will now adjourn.