Xavier Xenophon,[1] you have been convicted by a jury of one charge of sexual assault of a child and two charges of attempted sexual penetration of a child or lineal descendant. You offended against your then five-year-old daughter in your family home in on one incident that involved all three charges on a day between January and June of 2022.
Your then wife and your four children all lived together in the family home. On a Saturday or Sunday in the first half of 2022, you were at home with your children while your wife was at work. You were in bed naked when the complainant came into your room and asked you for a cuddle. Either you or the complainant removed her clothes and she got into your bed with you.
You moved her legs up towards her head and licked her vagina, Charge 1, sexual assault of a child. You then placed your penis against her lips and attempted to penetrate her mouth with it. You told her 'Do it, do it, do it'. That is Charge 2, attempted sexual penetration of a child or lineal descendent. You lubricated your penis with saliva and attempted to push it into her vagina. Your pushing nearly forced the complainant off the bed. She said that you attempted penetration causing her pain. This conduct is the basis of Charge 4, attempted sexual penetration of a child or a lineal descendent.
On the evening of 20 June 2022, the entire family were home and the complainant and another of your children were attempting to perform cartwheels and somersaults. The other child lay on the ground and put her legs up near her head. Your wife said to you, 'You like it when I can do that' as a joke. The complainant then said 'Yeah and then he licks it'. When your wife told the complainant that that comment was really inappropriate, the complainant said, 'But he did it to me'.
There then unfolded disclosure of your offending. The police were called the following day and the complainant made three VARE statements over two years. You denied the allegations. The police obtained an intervention order that excluded you from your home and from contact with your children.
On 8 July 2022, you and your wife spoke on the telephone about the intervention order. That call was tape recorded. Your wife repeatedly asked you to tell her what you did to the complainant and initially you continued to deny offending, claiming that you had not done anything.
Eventually you said 'It happened exactly how she said it. Exactly she told the police, it happened the way she told you, the night she told you. She touched me, I touched her'. You told your wife it happened once on a weekend, a couple of months prior. When your wife said 'Why? Wasn't I doing enough?'. You responded 'You do heaps honey, I don't know what is wrong with me. I am the most fucked up person in the world. I don't know what was going through my head'.
A few days after this call, you sent your wife two emails that stated 'I will understand if you never want to see me again and want to keep our beautiful children away from someone like me. I have broken the one thing I said I would never do and for that, I am very sorry'. And later, 'Something went wrong with me. Something no one ever seen, not even me seen coming and for that, I am sorry. I have broken all trust with my wife and children. I am meant to be your [the complainant's] protector, keeping you safe from people like me'.
When police sought to interview you about the allegations, you exercised your right to no comment. You did not give evidence or call witnesses at your trial.
The offences you committed are very serious criminal conduct. The maximum penalty for attempted sexual penetration of a child or lineal descendent is 20 years imprisonment. The maximum penalty for sexual assault of a child is 10 years imprisonment. You also fall to be sentenced as a serious sexual offender, in respect of Charges 2 and 4, as I will be imposing terms of imprisonment in respect of all three charges.
I must regard protection of the community as the principal sentencing consideration. To achieve that aim, the court can impose a disproportionate sentence. I do not intend to do so as I can adequately protect the community with the sentencing options otherwise available to the court, but I do order that it be recorded in the records of the court that you have been sentenced as a serious sexual offender in respect of Charges 2 and 4.
There is a presumption of cumulation of sentence in respect of sentences imposed upon serious sexual offenders. Unless the court otherwise directs, that presumption demonstrates how seriously offending like yours is viewed by Parliament.
Victim impact statements were tendered from the complainant, your former wife, your mother-in-law and sister-in-law. Many people have been significantly and seriously damaged by your offending. The complainant is confused and suffers nightmares. She is scared of you. Your ex-wife and sister-in-law feel guilty about not protecting her from you. Your ex-wife is hypervigilant and unable to trust others with her children.
Each aspect of the complainant's life has been affected by your crimes. The legal process has affected her adversely. It is clear that the lives of everyone who made victim impact statements have been substantially impacted. Mental health, relationships and the ability to function normally have all been damaged. I take the victim impact statements into account in sentencing you.
Turning to your personal circumstances.
You are nearly 44 years of age, being born in 1982. You were 42 when you offended. You completed school to Year 10 level. You then started what has been a solid and steady work history.
You met your ex-wife in 2012, subsequently marrying and having four children, including of course your victim. You are a man without a prior criminal history. The references tendered on your behalf attest to your work ethic and to your loyalty and caring nature. You enjoy support from friends, your mother and your two sisters.
Your prospects of rehabilitation are difficult, if not impossible to assess. On the one hand, your strong work history, your lack of prior convictions, your mother's support and your employment available to you upon your release, all give cause for optimism for your future. However, I struggle to comprehend how you could do the dreadful things you did to your young daughter. There is no explanation for your abhorrent conduct.
You will be required to complete the Sex Offenders course whilst you are in custody and perhaps that may assist you to understand yourself and your denials and give you insight into the damage you have done to your family, and in particular to the complainant. You now exhibit absolutely no remorse. You deny your conduct, despite the admissions you made in the pre-text call and in particular, the emails you sent to your wife, to which I referred earlier.
You chose to contest the charges and run a trial. That was your right and you cannot and will not be punished for doing so. However, you are not entitled to the considerable reduction in sentence available to those who plead guilty, particularly in cases like yours, involving young children.
Your counsel acknowledged that you had committed serious offences with significant effect on others. He relied on three factors in mitigation of your offending. Firstly, totality. I will return to that topic subsequently.
Secondly, your prior good conduct, your prior good character, your lack of prior convictions. Although I should say, that is less relevant in cases such as yours.
And thirdly, he relied upon your prospects for rehabilitation, but as I previously indicate, I cannot get a clear picture of those prospects in your case. I am of the view that your offending represents high level examples of the type of offences you committed, the objective gravity of your offending is high, as is your moral culpability.
Your sexual assault of a child offence involved you licking your five-year-old daughter's naked vagina with your tongue. This is clearly an upper-level example of sexual assault. The two attempts at sexual penetration of your five-year-old daughter represents as close as possible completed penetrative conduct. Your attempted penile vaginal penetration was vigorous and almost pushed your victim from the bed. You also verbally insisted that she suck your penis.
I must have regard to principles of general deterrence in sentencing you. Those who offend against children in a sexual way, particularly very young children, need to understand that substantial terms of imprisonment will be imposed for such offending. The offences occur in privacy and are difficult to detect. General deterrence therefore is a very important factor in cases such as yours. I must express denunciation of your conduct, and I must ensure that you are punished appropriately and justly for your offending.
It is significant that all three offences occurred in the one isolated incident. I must impose a sentence that demonstrates the seriousness of each offence, taking all sentencing considerations into account. I must then determine what cumulation of sentence for individual charges is appropriate, having regard to principles of totality to arrive at a head sentence that I can appropriately apply to the total offending for the one incident of offending. I must then consider what is an appropriate minimum term you must serve before being eligible for parole.
It is clear that nothing other than substantial terms of imprisonment are appropriate for each of your offences. Your counsel effectively conceded as much. Your offending is disgusting and base. You abused your five-year-old daughter in a gross attempt of personal sexual gratification. Her vulnerability, her fragility and her innocence were clear to the court when her video recorded evidence was played. She was tiny and young. You should have protected her from the very abuse you inflicted upon her. You failed her abysmally.
Would you please stand up.
On all charges you are convicted and on Charge 1, sexual assault of a child, you are sentenced to four years imprisonment. On Charge 2, attempted sexual penetration of a child or lineal descendent, you are sentenced to five years imprisonment and on Charge 4, attempted sexual penetration of a child or lineal descendant, you are sentenced to six years imprisonment.
Having regard to principles of cumulation, concurrency and totality, I order that one year of the sentence imposed on Charge 1 and two years of the sentence imposed on Charge 2, be served cumulatively upon the sentence imposed on Charge 4, which I declare to be the base sentence. That is an effective term of imprisonment of nine years. And I order that you serve six years of that sentence before being eligible for parole.
I have already ordered that it be recorded you are being sentenced as a serious sexual offender on Charges 2 and 4. Pursuant to the Sex Offenders Registration Act, you are to comply with your reporting obligations under that Act for life. Documentation will be forwarded to the prison for you to sign and return basically acknowledging that you have been served with your requirements under the Act.
I declare that 21 days of the sentence I have imposed has already been served by way of pre-sentence detention.