Braden Tanner[2], you have pleaded guilty to the following charges:
Charge 1, incest. This is a representative charge for the period of 1 January 1994 to 31 December 1995. This charge has a maximum penalty of 20 years imprisonment.
Charge 2, a charge of incest. This is a representative charge for the period of 1 January 1996 to 31 December 1996. This charge has a maximum penalty of 20 years imprisonment.
Charge 3, sexual penetration of a child between the age of 16 and 17 years old. This charge has a maximum penalty of three years imprisonment.
[2]
I turn to the circumstances of your offending. In October 1992, you formed a relationship with Cecilia Roderick[3]. Ms Roderick had four children and was approximately 14 years older than you were. Ms Roderick had two daughters. The younger daughter, Gemma[4], was the victim of your offending. Gemma is 10 years younger than you. You and Cecilia Roderick had a son in 1994.
At the time of the offending, Gemma was between the ages of 14 and 17 years old. You were between the ages of 24 and 27 years old. When you moved into the family home in Russell[5] Street in Bairnsdale, you treated Gemma more favourably than the other children. That is the background.
You and the Roderick family began living at the Russell Street address in late 1994, early 95. While living at that address, you and Cecilia were de facto partners. On one occasion at Russell Street, Gemma, then aged 13 or 14 years old, wagged school and stayed at home. You were unemployed and were also at home. You took her and her school friend, Lyla Sydney[6], to the Hopkins River Jetty[7]. You purchased a cask of vodka and orange drink called Nick Off as well as a number of cans of Jim Beam and cola. The girls drank the cask of Nick Off.
When the girls went to the toilet at Stokes Park[8], a teacher from their class was there. Ms Sydney ended up being taken back to the school by the teacher, but Gemma remained with you. You took her home to the Russell Street house at about lunchtime of that day. When she came out of the shower with a towel wrapped around her, the next thing she recalls is that she was lying on her back on the lounge room floor and you had taken the towel from her body. You had a top on but no pants. Your victim knew what was going to happen and lay there looking at him saying "You shouldn't do this" saying "No." She recalls trying to push you off, but she was submissive and did what she was told.
Your put your penis in her vagina and she felt pain. She kept lying on the floor as you put your penis in and out of her vagina. You did this for a while then stopped, and said you were going to get a condom. You told her to stay where she was, but as soon as you had left her alone, she got up and grabbed her clothes.
When you returned and saw her, you said "What're you doing?" and then "Don't tell mum what we did." Gemma ran out the door and went to her friend, Lyla Sydney's house. She told Sydney what you had done to her. She stayed the night at Sydney's house.
Cecilia Roderick phoned, thinking that she had run away due to a fight that she had had with Gemma. Gemma did not tell her mother the real reason she had left.
After this incident, you continued to treat Gemma in a special way compared to the other members of the Roderick family. You would buy her presents, but no-one else would get any presents from you.
While you were still living in Russell Street, you told Cecilia Roderick, you wanted them to all move to Melbourne. There was a dispute about this in the plea. It is not highly relevant why you went to Melbourne. The family then including Zowie, the elder daughter, moved to an address in Dandenong. Cecilia Roderick was working as a nurse but you were still unemployed. The older boys attended a local school. You said that Gemma who was then 14 years old, did not have to go to school. Cecilia Roderick recalled that the only time Gemma Roderick left the house was when she was in your company.
Gemma recalls the next time something happened was while you were living at the Dandenong address. All the family were home, and you wanted her to drive with you to get some ice cream. You drove her in your Ford Escort panel van to a local school. You parked in the school park and told her to get into the back of the panel van. In the rear of the van you had a mattress. She lay on her back on the mattress. She does not recall her underwear being removed, but you lay on top of her and put your penis inside her vagina. You did not use a condom and this time you ejaculated inside of her. That is part of Charge 1, incest. After this, you then went and bought the ice creams and returned home with them.
Gemma recalls her vagina was sore and she needed to go to the toilet a lot. She was in a bad mood with herself, and thinking "How could her mother not know what had just been done."
After a few months of living at Dandenong, Gemma's sister, Zowie[9], moved out of the home. Later, in 1996, the rest of the family moved to an address in Stoneriver[10]. Gemma recalls the next time something happened with you was during this time. She was then 15 years old. You drove her in your vehicle to the Scott Recreation Reserve[11]. You pulled into the Reserve and parked in the car park.
At this location, Gemma recalls that she had oral sex with you, and that this really upset her. The two of you were sitting in the front of your car, and you just told her to do it. Gemma obeyed you and did what she was told. She does not recall why she stopped, but she did. That is part of Charge 2, which is a representative charge of incest.
Gemma recalls that this was the second time that you had her perform oral sex on you. On a day in November 1996, you took Gemma with you while you attended a court case. Cecilia Roderick states that by this stage, Gemma was going everywhere with you. While you were gone, Cecilia Roderick packed her belongings and moved into a house owned by a friend taking all of her three sons with her. In effect, she cleared out on you.
Gemma remained living with you after this. From this time, you had Gemma sleeping in the same bed with yourself. You kept her isolated from her family and friends. She knew no-one in Melbourne. She was not working, or going to school and mainly stayed at home. From that point on, you and Gemma were in a sexual relationship. On 6 December 1996 you applied to Centrelink for a single parenting payment for the care of Gemma.
On several occasions after she moved out, Cecilia Roderick contacted DHS about Gemma, but Gemma was never removed from your care. Gemma recalls the police coming to the house a couple of times. You would not let them in, but she told the police you were the stepfather and guardian and that she was in your care.
In mid-December 1996, Gemma was feeling sick and you suspected she was pregnant. On 19 December 1996, you drove her to a medical practice telling her that she should tell the doctor that she did not have any steady relationship and had had casual sex with someone from school and the condom broke. You waited in the car while she was examined. Gemma told the doctors what she was told to say by you. A test confirmed that she was pregnant. The pregnancy was terminated at 9 weeks gestation, making the conception time approximately mid-October. That is part of Charge 1.
A termination was arranged for 24 December 1996. You came with her to the clinic and signed forms for her, Gemma had the pregnancy termination, then went out to where you were waiting in the car. She was prescribed contraceptive pills by the doctor at the clinic.
In 1998, Gemma, then 17, contacted an old school friend, Cathryn Lee[12], who had moved to Queensland. She asked Lee to come and visit herself and you. Lee agreed to visit and flew down for New Year's Eve. Lee recalls you taking them to the Casino and letting them drink alcohol and smoke cannabis.
During Lee's visit, she observed that you and Gemma appeared to be a normal couple, sleeping in the same bed and kissing. Lee recalls an occasion when she was sleeping on a mattress on the bedroom floor and Gemma and you were in the bed. Gemma and you began having sexual intercourse, so Lee left that room. That is Charge 3, sexual penetration of a child between 16 and 17.
When Gemma was 17 she began working at a packing job. It was around this time she became less submissive to you. The more independent she wanted to be, the more aggressive you became. Eventually, when she was 18, she called her mother and said she wanted to leave you. She packed her belongings and her mother picked her up. That was the end of your relationship with your victim, Gemma.
In August of 2008, Gemma was making preparation for her wedding to her then-fiancé. After discussions with him, she reported your offending to the police at that time. The police did not interview you until 2014. The interview took place on 5 February 2014. You exercised your right to make no comment record of interview and then at the end stated that the allegations against you were false.
At the committal hearing on 3 January 2015, you pleaded guilty to the charges now before the court. You also formally pleaded guilty to the charges on the indictment on 5 June 2015. A further amendment to those charges on the indictment were made and you pleaded guilty to those amended charges on 2 December 2015. You are entitled to a sentencing discount for your early plea of guilty.
It was put on your behalf and under instructions from you, that there was no power imbalance between yourself and your victim. The simple and undisputed facts are:
(1) Your victim was 13 to 14 years old at the time you first had sexual intercourse with her.
(2) You were 10 years older than your victim.
(3) You were in a de facto relationship with the victim's mother at the relevant time.
(4) You lived in the family home and were in loco parentis at all times.
Those four basic facts demonstrate a power imbalance between and your victim.
[3]
I will turn to the impact of your offending on your victim.
In this case, the victim of your offending filed a victim impact statement dated 10 December 2015. That is Exhibit B on the plea. She read the statement out in court. In that statement she sets out how she feels elements of disgust and dirtiness because of your offending. She sets out how her family blamed her and this resulted in loneliness, isolation and feelings of guilt.
She speaks of your grooming of her for sexual gratification and describes this as taking her childhood. She states she is striving to make her life good for her children and her husband, and not to be overcome in the role of being a victim.
I accept that your victim is showing a good deal of courage and success in containing the impact of your offending against her. Ms Ashworth had shown remarkable resilience in the face of your offending. Nevertheless, the residual doubts, isolation and feelings of guilt in her family setting, remain with her.
Cecilia Roderick, your ex de facto, filed a victim impact statement dated 16 December 2015. It was Exhibit C on the plea. That statement was not read out in court. In that statement she sets out her hurt at your betrayal and the impact of losing contact with her daughter for many years. She writes of a reconciliation with your victim in recent years but notes the heartbreak at not being invited to her wedding or being around at the birth of her granddaughter, your victim's first child.
Her statement sets out the grief, the guilt, the desperation that she has endured as a result of your offending. It was put on your behalf, under instruction, that you say Cecilia Roderick abandoned her daughter into your care in December 1996. This is the same period of time that you do two things:
(1) You apply for Centrelink payments as the carer of your victim; and
(2) You take your victim to the doctor's in a pregnant state, when she is pregnant to you, and arrange for termination of that pregnancy on Christmas Eve of that year.
These factors show then and now you still see this offending as a responsibility to be shared with others. That is, Cecilia Roderick for abandoning her daughter, and your victim because she stayed with you for years. You have pleaded guilty to the charges of incest. There is no room for blame-sharing in this case.
[4]
You are now 44 years old. At the time of these offences, you were aged between 23-24 and 27 years of age. In the past seven to 8 years you have been an on-again and off-again carer for your stepfather, Wat Meadows[13]. Dr Gayeds report, dated 19 November 2015, which is Exhibit 3, confirms your role between February of 2010 and January of 2012, and again in 2015, as the carer of Mr Meadows. You have been in receipt of a carer's pension for that role.
When you were approximately five years old, your biological parents separated. At that time, you had two older sisters who are step-sisters. They left the home when they were teenagers. You remained living there with your mother in the St Kilda area. You spent a good amount of time unsupervised and mixed with street kids in St Kilda.
You have attended numerous primary schools in the Balaclava and St Kilda area and finished formal education in Year 7 at a Tech School. You have limited ability to read and write. You had casual employment at the age of 15 or 16 years old. Your longest period of paid employment was six months at a business in Moorabbin. You have otherwise been in receipt of Job Search or a Carer's Pension. You have never been on a Disability Services Pension.
In 1993, you were injured in a motor accident in the East Gippsland area. Your injuries were serious and you were hospitalised for some 10 days. You gave Mr Geoffrey Cummins, Psychologist, a history of chronic illicit drug use. Your sister, Ms Roach[14], confirmed your drug abuse lifestyle when she gave evidence on your behalf. Your step-sister stated that you have only been 'clean and straight' were her words, for the last seven to 8 years.
In summary, you have reached the age of 44 years and have contributed very little to the communities in which you have lived, either by paid employment or other constructive endeavours. You have a son with Cecilia Roderick. He would now be approximately 21 years old. There was no mention of your current contribution to his welfare in your plea.
You have had the three significant relationships, first with Cecilia Roderick, which ended in part because of your offending. You classify your offending as a relationship with your victim, that is the second one, and she left your house when she was 18 years old. You then had a six year relationship with a woman who suffered from MS. You have been single since 2007.
Your prior criminal history is related to driving offences and dates back to 1992/94. Your last offence in 1994 resulted in a suspended prison sentence of two months. On 5 April 1995, that term of imprisonment was further suspended for six months. You have subsequent offences which are also driving-related offences. You have served a term of imprisonment for them.
It was upon your release from prison that you were interviewed for these offences in February 2014. There are no outstanding charges. None of your prior or subsequent criminal history has any sex offending in it.
Your current position is that you act as a carer for your stepfather, Mr Meadows. You were supported in court by your two step-sisters who prepared references which are Exhibit 4 on the plea. They were here to support you.
You have lived a life dominated by alcohol and drug abuse until recent years. You now face court to be punished for crimes you committed some 20 years ago.
[5]
I turn to sentencing considerations. The basic purpose for which a court may impose a sentence of imprisonment are just punishment, deterrence, both specific and general, rehabilitation, denunciation of your actions and the protection of the community. In sentencing you, I must have regard to a range of factors such as the seriousness of your offending, your culpability for them and your personal circumstances and those of your victim.
I am required to balance the interests of the community in denouncing your criminal conduct, and to ensure, as far as possible, you as an offender are rehabilitated and reintegrated into society. As part of the governing principles to be considered in sentencing, I must take into account the current sentencing practices and more particularly, at the time of your offending. That enquiry is directed particularly, but not exclusively to the kinds of sentences imposed in comparable cases and the statistics at the time of your offending, and at the time of sentence. I have considered these statistics and current practices, mindful that each case must be considered in the light of its own particular circumstances, and that many of the cases would be distinguishable from your case, as indeed they are from one another.
I also take into account the sentencing practices at the time of your offending. As I have said, each case, again, has its own distinguishing features and may be distinguished from yours as from one another. I was informed by Counsel, and accept, that the median sentence for incest at the time of your offence was four years imprisonment.
The offences of sexual offending against a child in your care strikes at the very heart of the most important building block in our society, that is, the family.
The prevalence of the crime of sexual offending in the community erodes the decency of family life, and the trust and confidence of its young victims. Such crimes call for punishment to reinforce the principles of general deterrence, denunciation and protection of young people.
In this case, there are two separate charges of incest which covers a period from 1 January 1994 until 31 December 1996. That is a total period of three years. The two charges are representative counts.
As I say, in this case, Charge 1 and 2 are representative counts. That is, that the offending is representative of two or more acts of the same character. This fact has a two-fold relevance in sentencing. The first is, that it is to be understood as an absence of a mitigating factor as being an isolated event, and secondly, it provides a wider context to the extent of your offending.
The Court of Appeal has set out the effects of incest. In the case of DPP v G, [2002] VSCA 6, the President of the Court of Appeal, President Winneke, said as follows:
"The insidious effects of the crime of incest upon its victims should be recognised by those who are privileged to exercise parental care and the community is entitled to expect that that who exercise such care, will not abuse the trust and confidence reposed in them by those in their charge. Parents and those in loco parentis - that is you - who fail to exercise the restraint which the community expects of them and who give in to their own sexual gratification, must expect to be severely and appropriately punished."
The aggravating features of your offending are:
(1) Your offending extended over a period of some three years.
(2) Your step-daughter was aged between 13 to 14 years old and 17 years old.
(3) The age difference between the two of you was 10 years. When the offending started you were a man of 24 years and your victim was the child of your-then de facto partner.
(4) You did not use protection in the course of your sexual penetration of the victim on a number of occasions, exposing her to the risk of pregnancy, as in fact happened.
(5) Your victim, as I say, became pregnant as a result of your offending and you arranged for the termination of that pregnancy.
(6) You used psychological control to woo your victim into sexual activity with you by 'treating her like a princess' - they are her words - in a setting where the remainder of the family was given nothing from you.
(7) Your offending was brazen to the extent that your own sisters tried to intervene, but to no avail.
(8) The offending is a gross breach of trust to your de facto who was the mother of your only child, and to your step-daughter who should be entitled to feel safe from harm in her own family home.
The delay from the time of your offending to the present time is a period of some 20 years. The relevance of delay lies in the effect which the lapse of time has had on you, the prisoner.
The superior courts have stated that delay constitutes a powerful mitigating factor. The first aspect is the time that these charges have been hanging over your head. In this case, you have known about these charges from February 2014 onwards. The finalisation of these matters has progressed reasonably diligently, and Mr Gray conceded that this was not a significant factor for delay in your case.
The second aspect is that since your victim has left your home, there has been considerable rehabilitation on your part. You have not offended in respect of sexual offences since that time. You have dealt with your drug addictions, but still have alcohol issues to control.
In more recent times, you have been a carer for your step-father. This means that the need to protect the community and the specific deterrent aspects of sentencing principles are reduced so as not to destroy the results of the rehabilitation to date.
You have been assessed by Mr Cummins as a low risk of re-offending in a sexual manner, in your case, specific deterrence is not as important a sentencing factor as some of the others.
You have pleaded guilty to these proceedings. The plea was indicated prior to the committal proceedings. Your plea has the utilitarian value of allowing the orderly and effective administration of justice. There is a certainty of outcome and the resolution of the substantive issues raised by your offending. You plea allows for the preservation of court and police resources to deal with other matters. Your plea vindicates public confidence in the legal process set up to protect the community.
You have, by your plea, relieved your victim, your step-daughter, from giving evidence against you. It facilitates some closure for her as a victim of your offending. Your plea also is a clear acknowledgement by you, that you accept your responsibility for your criminal behaviour in this case. Your plea also recognises you are willing to facilitate the course of justice in the community.
I accept that your plea of guilty to these charges indicates and demonstrates some remorse on your part.
Under the Serious Offender Provisions of the Sentencing Act, on your conviction and sentence to a term of imprisonment, whether suspended or not, on two sexual charges, I am required on the sexual offence charge thereafter to regard the protection of the community from you as a principle purpose for which the sentence is to be imposed.
If necessary in order to achieve that purpose of protecting the community, I am empowered, pursuant to s.6(D) of the Sentencing Act, to impose a sentence greater than is proportionate to the gravity of that offence.
This means the sentencing task in respect of Charge 3 on the indictment is to be undertaken on the basis that the protection of the community from you is the principle purpose for which that sentence is to be imposed.
To achieve that purpose, the sentence may be imposed longer than that which is proportionate to the gravity of the offence considered in the light of the objective circumstances.
Section 6(E) of the Sentencing Act also requires that unless I otherwise direct with respect to Charge 3 on the indictment, the sentence I impose on you is to be served cumulatively. I note here that the Crown did not call for a disproportionate sentence or the cumulation contemplated in either s.6(D) or 6(E) of the Sentencing Act.
Allowing for the matters I have already outlined, in my view it is appropriate to only impose the degree of cumulation to which I subsequently refer, reflecting as it does, several episodes of offending. To do otherwise, may produce a sentence that is not appropriate and is unjust. I have previously referred to the impact of your plea of guilty and I have taken into account in the manner which I have outlined previously.
Your counsel conceded that a term of immediate imprisonment, combined with a Community Correction Order was the appropriate disposition in all the circumstances of the case. The prosecution submitted a median sentence of imprisonment was the appropriate sentence.
Would you stand please.
On Charge 1, you are convicted and sentenced to four years imprisonment.
On Charge 2, you are convicted and sentenced to three years imprisonment.
On Charge 3, you are convicted and sentenced to one year imprisonment.
I order that one year of the sentence in Charge 2 and six months of the sentence in Charge 3, be served cumulatively on the sentence in Charge 1 and to each other. That is a total effective sentence of five and a half years imprisonment.
I set a non-parole period of three years. I declare that you have served one day pre-sentence detention. Pursuant to s.6AAA of the Sentencing Act, but for you plea of guilty, I would have sentenced you to a total effective sentence of 8 years imprisonment with a six year non-parole period.
I also direct that pursuant to s.6(F) of the Sentencing Act, that it is entered into the records of the court that I have sentenced you in respect of Charge 3, as a serious sexual offender under the meaning of the Act.
At the time of the hearing the prosecution sought an order to obtain a forensic sample from you. I will sign that order in respect of the forensic sample. The reason I am making the order for the retention or taking of the forensic sample is that the seriousness of the offence warrants such a retention or taking of that sample, and it was not opposed and it is certainly made in the public interest.
The offences for which you have been found guilty are registerable offences pursuant to the provisions of the Victorian Sexual Offenders Registration Act [2004] and by reason of your conviction for these offences, you are a registerable offender obliged to comply with the reporting conditions or obligations imposed by that Act.
As required by s.5(2)(B)(C) of the Sentencing Act, in sentencing you, I have ignored any consequences that may arise and in this case, still arise under the Act from the imposition of the sentence today. In other words, the reporting burden that you carry as a registered sex offender is not a matter that can be objectively influencing a position of a just sentence.
I am required to give you written notice of your reporting obligations and the consequences that may arise if you fail to comply with these obligations. I am also required to inform you that the length of the reporting period is, in your case, for life.
In a moment, my Associate with give you the documents for that, and Mr Ewart will be able to give you assistance with understanding that document.
MS GUESDON: Your Honour, I have the 464ZF.
HIS HONOUR: Thanks. Just to explain, the terms of taking this forensic sample, what this means is the authorities will ask to take a swab from inside your mouth and that is how they obtain it. Do you understand that?
ACCUSED: Yes.
HIS HONOUR: Yes, and if you don't comply they have the authority to use reasonable force to obtain it. Thanks. Does that cover everything in Mr Tanner's case?
MS GUESDON: Yes, Your Honour.
HIS HONOUR: Yes, thank you. Thanks. Remove the prisoner. Thanks Mr Ewart.