DPP v Weir

1. The details of your offending were set out in the Summary of Prosecution Opening on the Plea, and I sentence you on the basis of the facts contained in that document.

1. The offending for Charge 1 occurred between 10 November 2016 and 30 June 2017, and was carried out against Emily[5], a daughter you had with Samantha Devlin[6] while you were in a relationship between 2000 and 2016.[7] Your daughter was 13-years-old at the time of the offending. The offending occurred on a frequent basis at your home, and consisted of you penetrating her vagina and anus with your penis at night while she was in bed. In her statements made on 19 January 2020 and 17 February 2021, she detailed the following instances of offending and conduct by you:
2. The first incident occurred between 10 November 2016 and 30 June 2017 when she was asleep in her bed. You woke her, held her down, and removed her lower body clothing before pulling down your underwear and inserting your penis into her vagina. This caused your daughter pain and discomfort, and she moved up the bed to get away from you and managed to fight you off. You did not ejaculate, and penetration lasted a short time before you left the bed.
3. The second incident occurred between 10 November 2016 and 30 June 2017 when you entered your daughter's bedroom whilst she was lying awake on her back. You held her arms by her side so she could not move, and grabbed her as she tried to move away. You took off your shorts and underwear and pulled down her underwear, before penetrating her vagina. This incident, including penetration, lasted approximately ten minutes.
4. On three occasions between 10 November 2016 and 30 June 2017, you woke your daughter up and attempted to sexually assault her. In her attempts to get away from you, she rolled over onto her stomach. On these occasions you held her down, took off her shorts and underwear, and penetrated her anus.
5. On numerous occasions between 10 November 2016 and 30 June 2017, you penetrated her vagina with your penis.
6. You made efforts to convince your daughter that your conduct was normal, telling her it is normal for a father and daughter to do it. You told her not to tell anyone about your actions and that if you got into trouble, or went to gaol, it would be her fault. She stated that she did not really know your conduct was wrong because you told her it was fine as long as she did not tell anyone.
7. Your offending against your daughter only ceased in August 2017 when she had to have surgery to repair a vital organ.
8. Emily first disclosed the offending on 19 January 2021.

1. The offending for Charges 2 to 6 took place between 19 October 2019 and 11 January 2021 against Anna[8], who was your 10-year-old step-daughter, the daughter of Danielle Burnham[9].
2. On 14 January 2021, your step-daughter attended a police station and disclosed the following offending by you:
3. In late October or early November 2019, when she was 10 years old, your step-daughter was in the lounge room playing with a Virtual Reality headset purchased by you. Whilst she was playing, you pulled up her school dress and pulled down her underwear. She felt this happening but could not see due to wearing the headset. She felt you touch her leg and after removing the headset, saw you attempting to touch her vagina. She then pushed you away. This offending relates to Charge 2 and is the first incident that she remembers.
4. Charge 3 concerns your conduct on an evening between 1 October 2020 and 30 November 2020, when your step-daughter was 11 years old. You laid her down on a wooden television cabinet in your shed at your home and penetrated her vagina with your penis. You ejaculated on to her stomach and cleaned it up with a rag.
5. Charge 4 concerns your conduct between 25 December 2020 and 5 January 2021 when you penetrated your step-daughter's vagina with your penis in the master bedroom of your home. While dressing her afterwards, you kissed her on the mouth with your tongue. She found this disgusting and hated it. Your conduct on this occasion resulted in your step-daughter becoming pregnant. The pregnancy was confirmed at a hospital in mid-January and terminated a week or two later. The product of conception was analysed at the State Forensic Science Centre and the DNA profiling results indicated that you were the biological father.
6. Charge 5 concerns your conduct on 7 January 2021, after you and your step-daughter had dropped off your younger daughter at day-care, and before you went shopping for your partner's birthday present. On this occasion, you penetrated your step-daughter's vagina with your penis on the bed in the master bedroom and ejaculated on to her stomach. She recalls the incident as lasting approximately 10 to 15 minutes.
7. Charge 6 concerns your conduct on 11 January 2021, when you laid your step-daughter down on the bed in the master bedroom and penetrated her vagina with your penis, and then ejaculated onto her stomach.
8. Your step-daughter stated that from the first time you sexually penetrated her, you repeatedly told her not to tell anyone about your offending.

1. Your offending was discovered because on 14 January 2021, you came to Danielle Burnham whilst anxious and distressed, stating that you had done something wrong and didn't know how to fix it. Ms Burnham inquired about you having an affair, and then asked if you had raped your 11-year-old step-daughter. You nodded and replied that you were sorry and had made a mistake. You admitted to having sex with your step-daughter and had become concerned that she was pregnant due to her missing her regular menstrual cycle. You had made her take multiple pregnancy tests whilst at home.
2. Danielle Burnham and your step-daughter attended the police station at about 8.15pm, where your step-daughter made her statement detailing your offending. You were arrested and interviewed by police on 14 January 2021 in relation to Charges 2 to 6.
3. In your Record of Interview, you initially stated that sexual acts had only occurred once, and that you could not recall the other offending disclosed by your step-daughter when it was recounted to you. You blamed her for initiating the sexual acts, by conduct including:
   1. Well a lot of the time she'd be just sitting there grabbing herself right beside me and stuff like that;
   2. Grabbing her vagina and stuff;
   3. And then she'd just sit there and wear a dress or something or she'll just sit there and she'll open her legs and stuff like that, which was wrong;
   4. If I'm sitting there and she sits on it (penis), then it's not my - it's not me that's penetrating her;
   5. She's just jumped on it (penis) and had it - had sex;
   6. I feel like I've been roped into it....by [her].[10]
4. When reference was made to specific events in her statement, you agreed with her recollections. You identified with dates such as birthdays or particular events or locations and to having sex with her in general, but otherwise said you could not remember specific instances. You admitted to becoming concerned that she was pregnant after she had missed her expected menstrual cycle, and to purchasing the home pregnancy tests.
5. After your interview, you were remanded into custody and charged on 15 January 2021.
6. On 18 January 2021, detectives and child protection workers visited Samantha Devlin to advise her that due to undisclosed circumstances you would not be able to have contact with your children until May 2021. After Ms Devlin explained the purpose of the visit to the family, Emily inquired about further details and stated "did he rape her? ... well he raped me". Emily then attended the police station on 19 January and 17 February 2021 to make her statements.
7. On 24 February, when interviewed in prison by police, you made a "No Comment" interview in relation to the conduct the subject of Charge 1.

1. Discussions between the parties took place on 20 August 2021 and at the third committal mention on 17 September 2021 you indicated your intention to plead guilty.

1. Emily provided a Victim Impact Statement dated 28 February 2022. In it, she described how you manipulated her, and confused her by telling her it was normal for a father to act this way, and yet warning her not to tell anyone about your offending or you might get into trouble with police. She stated that you were abusive to her when the offending commenced, which affected her greatly as you seemed to forget that she was a child, and your daughter. She felt she had to protect her siblings from you. She stated that once she realised what you had been doing to her, she suffered from anxiety and depression, as well as a loss of connection with her friends. She lost out on having fun as a child. She is looking forward to changing her name so as to break all connection with you.
2. Her mother, Samantha Devlin, provided a Victim Impact Statement dated 28 February 2022 in which she stated that prior to disclosing your offending, her daughter's mental health and schoolwork were suffering. She was not sleeping and was self-harming. She started counselling, which is ongoing, and when aged 16 refused to go to your house on the weekends. She avoided you whenever possible, even throwing herself off her bike into a hedge when she saw your car driving towards her. She withdrew from her friends and has had difficulty trusting new people. You put her job as a waitress in jeopardy by going to her workplace during rush hour, insisting on talking to her, then waiting outside for her, making her feel unsafe and causing her employers to drive her home. You tried to get her out of the car, then followed her home. She was so afraid that she went to the driver's home instead of her own. For months after this incident, she was hypervigilant. She feels that you have negatively affected her relationship with your side of the family.
3. Ms Devlin stated that since your daughter disclosed your offending, she has made some friends and with much assistance had been able to complete the school year. She is now better able to tolerate her younger siblings talking about you.
4. Danielle Burnham, the mother of Anna, made a Victim Impact Statement dated 17 February 2022 in which she stated that she was devastated by your offending, which showed that you had no consideration for anyone but yourself. She was heartbroken at having to comfort her daughter when she was in hospital having a termination at the age of 11. After the operation her daughter experienced terrible pain as well as "mental and emotional scarring". Since disclosing your offending, she has remained terrified of the dark, wetting her bed on occasions, petrified to be in her bedroom alone. She has had to sleep with a light on, even when Ms Burnham is with her. After she disclosed your offending, every household item or surface you used when offending against her had to be disposed of, as she could not stand to be around them. This included beds, mattresses, linen, the kitchen table and lounge suite, and the desk that stood in the shed.
5. Due to your offending, her grades slipped from A to C. She felt dirty and shameful, and had trouble socially with friendships for fear of being judged. She remains afraid of being contacted by you against her will, and remains scared for Ms Burnham and for her younger sister.

1. Your personal circumstances were set out in your counsel's submissions and the report of Dr Rajan Darjee, consultant forensic psychiatrist, dated 6 April 2022. You were born in Port Fairy in 1979 and are 42 years old. You were between 37 and 41 years old during your offending.
2. You were raised by both your parents in Port Fairy and are the youngest of three siblings, with two older sisters. You reported having a happy home life growing up in a stable family environment. You were born 11 weeks premature and experienced seizures as a baby. This appears to have contributed to you suffering from epilepsy as a child, for which you took medication until the age of 16. You also experienced difficulties reading, writing, and spelling while at school and experienced bullying because of this. A neuropsychological assessment in 2003 determined that you had below average intellectual functioning, specifically, problems with concentration, speed of performance, and organisation/planning.[11] You left school at age 15 and completed a carpentry and joinery apprenticeship, after which you worked mainly on commercial construction projects. By age 24 you were having trouble getting work and then gained employment as a factory hand and builder. At age 34 you started work as a truck driver for a transport company, but stopped in 2020 because of back problems.
3. At age 14 you began experimenting with cannabis and were a heavy user from ages 16 to 24. You also drank heavily in your early 20s and at age 34 began experimenting with methamphetamine, which contributed to the breakdown of your relationship with Ms Devlin.
4. Your only prior offending was in 2003 when you were fined $100 without conviction for being drunk in a public place, using indecent language in a public place, and resisting police.
5. According to Dr Darjee, your medical history includes taking olanzapine for anxiety in your early twenties against a background of substance abuse. You have recommenced taking that medication in prison. Dr Darjee did not diagnose you with depression. You denied having any sexual interest in children and reported feeling sad and depressed at the time of offending in the context of relationship problems with your partners. Dr Darjee opined that your offending follows the pattern commonly seen in men who offend against their daughters, in that when they are having relationship problems they regress and turn to children as a substitute for adult sexual intimacy. However, Dr Darjee opined that neither your cognitive difficulties nor your depression/anxiety directly caused your offending,[12] although your history of using sex to make you feel better may have indirectly caused you to be disinhibited and to resort to seeking sexual gratification with your daughter and step-daughter.
6. When assessing your risk of sexual reoffending, Dr Darjee applied the Static-99R and the RSVP assessment tools. Applying the Static-99 R tool, Dr Darjee concluded that you fall into the 'below average risk' group mainly because of your age. Applying the RSVP tool, Dr Darjee found that you have very few relevant risk factors. Overall, Dr Darjee concluded that you pose a low risk of further sexual recidivism in that you "are very unlikely to cause serious physical harm or to target children he does not have a parental relationship with".[13] Dr Darjee concluded that "the only sensible risk management strategy is preventing him having the sole care of girls aged between 10 and 17 years old".[14] Dr Darjee felt that your risk factors could be addressed through psychological treatment and may not require enrolment in sex offender treatment programs.

1. In written and oral submissions, your counsel conceded that your offending was extremely serious and required the imposition of an immediate and substantial term of imprisonment with a head sentence and non-parole period. This is reflected in the applicable maximum penalties and standard sentence regime. The offending was heinous and involved a grave breach of trust, was repetitive and protracted, and can be 'legitimately observed' as at the upper end of its type.[15]
2. You counsel submitted that where multiple sentences are to be imposed, even where sentencing an offender as a serious sexual offender, the Court should avoid a crushing sentence and give full weight to the totality principle by modifying orders for cumulation.[16]
3. Your counsel submitted that your greatest mitigating factor was your early plea of guilty which allowed the matter to be finalised in a timely way. He submitted that your plea indicates acceptance of responsibility and remorse for your offending, and is of very high utilitarian benefit in saving the expense of a trial as well as sparing witnesses from the trauma and inconvenience of a trial.[17] Additionally, a plea of guilty during the COVID pandemic carries with it a greater utilitarian benefit than at other times and should warrant an 'actual and palpable amelioration of sentence'.[18]
4. It was submitted that you expressed remorse for your offending to Dr Darjee.
5. Whilst noting that you have coped reasonably well in custody, Dr Darjee stated that due to your naivety, vulnerability to anxiety and depression, you will find prison more difficult than other prisoners. You counsel submitted on this basis that the fifth limb of Verdins[19] is enlivened.

1. The prosecution submitted that the offence of incest is particularly serious, as indicated by the maximum penalty of 25 years' imprisonment. It is an abhorrent crime as it erodes the decency of family life and the trust of young people. It involves a gross breach of trust. It has a devastating effect on the victims.
2. In the present case, the offending is aggravated by the young age of the victims, the period of time over which the offending occurred and the fact that there are two victims. Whilst not accompanied by violence over and above the violence inherent in the sexual offending, it was accompanied by manipulation and psychological coercion.
3. The most aggravating feature of the offending is that as a result of the offending the subject of Charge 4, the 11-year-old victim fell pregnant and had to undergo an abortion.
4. It was submitted that general deterrence, just punishment and denunciation should be at the forefront of the sentencing consideration. It was conceded that even though you will be sentenced as a serious sexual offender on Charges 3 to 6, the principle of totality has some role to play. Nevertheless, it was submitted that the orders for cumulation and the total effective sentence should reflect the fact that there are two victims.

1. Your offending in relation to each victim can only be described as heinous, as a fundamental abuse of parental authority and as a fundamental betrayal of the whole community's recognised values of family, of decency and of simple common humanity. Your actions have deprived your victims of their childhood, of their physical integrity, and of their right to feel safe at home. The young ages of the victims is a factor which further elevates the seriousness of your offending. In addition, there is no evidence that you wore a condom while offending against them, thus exposing them to the risk of sexually transmitted diseases and to pregnancy, a risk which eventuated in the case of Anna.
2. Your offending against Emily, aged 13, involved a course of conduct of anal and penile penetration over 7 months. You manipulated and coerced her psychologically. You used force to hold her down when penetrating her. The anal penetrations occurred when she fought your attempts at penile penetration of her vagina. Your offending caused her pain and distress, years of anxiety and depression, a deterioration in her school work, self-harming, hypervigilance and efforts to avoid you wherever possible. Your offending only ceased when she underwent major surgery. In sentencing you for this course of conduct, I have had regard to two recent decisions of the Court of Appeal, DPP v Tullipan (a pseudonym) [2021] VSCA 191; and Crawford (a pseudonym) v The Queen [2018] VSCA 113, which were referred to me by counsel.
3. Your offending against Anna, aged 10, began with a sexual assault and graduated to sexual penetration on four occasions, three of which occurred in the master bedroom of your home, and the second of which (Charge 4) resulted in a pregnancy. She no doubt suffered pain and distress during your offending. Your offending ceased when her pregnancy was confirmed. She then underwent a termination at the age of 11. According to her mother, your step-daughter suffered terrible pain as well as mental and emotional scarring after the termination. Her grades slipped from A to C and she had difficulty maintaining friendships for fear of being judged. She has remained terrified of the dark, bed-wets on occasion, and every item in the household associated with your offending (furniture, beds, linen etc.) has had to be removed. She continues to fear that you will contact her against her will.
4. In your record of interview, which can only be described as callous and shameful, you blamed your 10-year-old step-daughter for the offending. Given the DNA evidence obtained from termination of the pregnancy, the Crown case against you in relation to the offending against your step-daughter was a very strong one.
5. You had a normal upbringing in a happy family home. Although you had below average intellectual functioning, you attended school until the age of 15, completed an apprenticeship, and had a solid work history until 2020. Dr Darjee did not diagnose you with any mental illness or disorder. I consider that your moral culpability for your offending is very high.
6. I note that Dr Darjee stated in his report:[20]

He described "total sadness and I feel very sorry for what I've done". He said there was no risk of him doing anything like the offences again. He had found prison to be a stressful and negative experience.

He regrets his offending, states he is sorry for what he has done, and does not want to commit such offences in the future. His level minimisation and not wanting to discuss his offending are not of concern in terms of risk of recidivism or being an impairment to his prospects for rehabilitation.

1. Dr Darjee digressed in his report to commenting on research into remorse. I have ignored those parts of his report as irrelevant to my consideration of the issue of remorse. I reject Dr Darjee's assertion that your unwillingness to discuss the offending is irrelevant to the issue of recidivism or your prospects of rehabilitation, as no basis is given for this assertion. Apart from the taking of responsibility which inheres in a plea of guilty, I consider that, given your comments in your record of interview blaming your step-daughter for your conduct against her, you have shown no genuine remorse for your offending against her, in the face of a very strong Crown case. Nor do I consider that, on the material before me, you have shown genuine remorse for your offending against your daughter.
2. For this reason, I have given less weight to your plea of guilty than would otherwise have been the case, although I acknowledge and take into account that your plea has validated the victims' accounts and saved them from the trauma of giving evidence. I have taken into account that you are entitled to an additional amelioration of sentence for entering your plea during the currency of the COVID-19 pandemic.[21]
3. On the authorities, your offending requires the principles of general and specific deterrence, denunciation and protection of young persons to be at the forefront of the sentencing process. The long-term harm done to the victims from your gross breach of trust must be given appropriate weight.[22] In addition, I must have regard to the maximum penalties imposed by Parliament for the offences you have committed and to current sentencing practices.
4. I acknowledge the absence of prior relevant convictions. I also take into account that your time in custody may be more onerous than for a person not vulnerable to anxiety and depression.
5. Whilst I accept that the assessment tools used by Dr Darjee yielded a conclusion that you pose a low risk of further sexual recidivism, I am not persuaded by this conclusion in the light of the qualifying statements that followed this conclusion:[23]

... This low number of risk factors and level of dynamic risk, combined with the level of assessed risk with the Static-99R, indicate that overall he poses a low risk of further sexual recidivism. That is, he is less likely than the average man convicted of a sexual offence to commit a further offence. In the unlikely scenario that he did commit a further offence it would be similar in nature to the current offences. He is very unlikely to cause serious physical harm or to target children he does not have a parental relationship with. There is nothing to indicate that he would pose an imminent risk if in the community. The only sensible risk management strategy required is preventing him having the sole care of girls aged between 10 and 17 years old.

1. I consider on the material before me that your prospects of rehabilitation are guarded, particularly if they depend on your not forming relationships with women who have daughters/young daughters, or not having sole contact with young girls.
2. I acknowledge that when considering the extent of cumulation between sentences, even in relation to those offences to which you are liable to be sentenced as a serious sexual offender, the principle of totality dictates that the total effective sentence imposed must not be a crushing one. Nonetheless, the sentence imposed must reflect the fact that there are two young victims of your offending. As was conceded by your counsel, the only appropriate sentence in your case is a substantial and lengthy term of imprisonment, but one that is no longer than appropriate.
3. In sentencing you, I regard the offending the subject of Charge 4, which caused your 11-year-old step-daughter to undergo a termination of pregnancy, as the most serious of the offences to which you have pleaded guilty, although in terms of seriousness it is closely followed by the seriousness of the course of conduct offending against your daughter and the remaining penetrative offences committed against your step-daughter.
4. As you are to be sentenced to a term of imprisonment on Charges 1 and 2, you are to be sentenced as a serious sexual offender on Charges 3 to 6. This means in determining the length of your sentence, I must regard the protection of the community from you as the principal purpose for which the sentence is imposed.[24] In doing so, I may impose a disproportionate sentence.[25] It was not submitted that I should impose a disproportionate sentence, and therefore I decline to do so. Additionally, unless I direct otherwise, the sentences of imprisonment imposed on Charges 3 to 6 must be served cumulatively on any uncompleted sentences of imprisonment.[26] To apply the principle of totality and avoid a crushing sentence, I direct otherwise, and have moderated the orders for cumulation as outlined below.
5. I note that the standard sentence for the offence of sexual penetration of a step-child (Charges 3-6), which takes account only of the objective factors of the offending, and not of the personal circumstances of the offender,[27] is one of 10 years' imprisonment.[28] I also note that, on the authorities, the standard sentence is a legislative guidepost akin to the guidance provided by the maximum penalty for an offence; it does not affect the assessment of the seriousness of the offence which is undertaken as part of the instinctive synthesis.[29]
6. I sentence you as follows:
7. On Charge 1, incest, which is a course of conduct charge, you are sentenced to 10 years' imprisonment. On Charge 2, sexual assault, you are sentenced to 6 months' imprisonment. On Charge 3, sexual penetration of a step-child, you are sentenced to 10 years' imprisonment. On Charge 4, sexual penetration of a step-child, you are sentenced to 11 years' imprisonment. This is the base sentence. On Charge 5, sexual penetration of a step-child, you are sentenced to 10 years' imprisonment. On Charge 6, sexual penetration of a step-child, you are sentenced to 10 years' imprisonment.
8. I make the following orders as to cumulation:

(a) 18 months of the sentence imposed on Charge 1 is to be served cumulatively upon the base sentence; > > (b) one month of the sentence imposed on Charge 2 is to be served cumulatively upon the base sentence; > > (c) 18 months of the sentence imposed on Charge 3 is to be served cumulatively upon the base sentence; > > (d) 18 months of the sentence imposed on Charge 5 is to be served cumulatively upon the base sentence; > > (e) 18 months of the sentence imposed on Charge 6 is to be served cumulatively upon the base sentence.

9. The total effective sentence is 17 years and 1 month imprisonment with a non-parole period of 13 years.
10. I declare that there are 551 days of PSD, not including today, which are to be deducted administratively from this sentence.
11. I indicate pursuant to s 6AAA that, but for your plea of guilty in relation to all of the above offences, and given the strength of the Crown case in relation to the charges concerning your step-daughter, I would have imposed a total effective sentence of 21 years' imprisonment with a non-parole period of 17 years' imprisonment.
12. As you have been sentenced to 5 charges which are class 1 offences under the Sex Offenders Registration Act 2004 (Vic), you are a registrable offender as defined in the SORA and must comply with the reporting obligations for the remainder of your life.

[2] Sentencing Act 1991 (Vic) s 5(2G).

[4] Ibid s 5(2F).

[7] You have two other daughters with Samantha Devlin.

[10] Summary of Prosecution Opening [24].

[15] Defence Outline of Submissions for Plea dated 6 April 2022, [28].

[16] R v Beck [2005] VSCA 11; DPP v Bales [2015] VSCA 261.

[17] R v Duncan [1998] 3 VR 208.

[18] Worboyes v R [2021] VSCA 169.

[19] R v Verdins & Ors [2007] VSCA 102.

[21] Worboyes v R [2021] VSCA 169.

[22] DPP v Dalgliesh (a Pseudonym) [2016] VSCA 148.

[24] Sentencing Act 1991 (Vic) s 6D(a).

[25] Ibid s 6D(b).

[26] Ibid s 6E.

[27] Sentencing Act 1991 (Vic) s 5A.

[28] Crimes Act 1958 (Vic) s 50D.

[29] Sentencing Act 1991 (Vic) s 5B; Brown v The Queen [2019] VSCA 286.