A Warrnambool case is expected to cause a shift to longer jail terms for incest after the state's highest court found Victorian judges are imposing "extremely lenient" sentences.
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The Court of Appeal on Wednesday recommended that judges hand down higher sentences in incest cases, to better reflect the "objective gravity" of incest and the long-term harm done to victims.
But it declined to overturn a five-and-a-half year sentence given to a former south-west man convicted of incest against his two step-daughters, and impregnating one of them at just 13.
He has to serve a minimum of just three years in jail before being eligible for parole.
The Director of Public Prosecutions had appealed the sentence, describing it as "manifestly inadequate", particularly given the 13-year-old had been forced to terminate the pregnancy.
Fearing repercussions if she told anyone the truth, the girl instead said she had been having sex with a boy at school.
She then had to endure her abusive step-father continuing to live with the family as a result of her lie.
The girl's sister, who has a mild intellectual disability, was 15 or 16 when her step-father committed incest against her, and also indecently assaulted her.
In its written judgement, the Court of Appeal said judges were imposing "disproportionately low" sentences, compared with the "yardstick" of a maximum penalty of 25 years' jail for incest.
"Sentencing for incest must reflect society's denunciation of the sexual abuse of children and the profound harm which it causes," it said.
"The very high maximum penalty underlines the seriousness with which the offence is regarded."
However, it said judges were bound to impose sentences that were consistent with those imposed by other judges.
"But for the constraints of current sentencing which – as we have said – reflect the requirements of consistency, we would have had no hesitation in concluding that the sentence imposed ... was manifestly inadequate."
The Court of Appeal said judges should be the ones to change sentencing practices.
"The criminal justice system can be – and should be – self-correcting," the court said.
In September last year county court Judge Mark Dean heard a number of horrific incest and sex abuse cases during a month-long sitting in Warrnambool.
In the appeal case, a 43-year-old man, who cannot be named due to a suppression order, pleaded guilty during the sitting to two charges of incest, one charge of indecent assault and sexual penetration of a child under 16.
The county court heard the abuse began in September 2009 and the two victims were sisters.
Between January and March 2013, one of the sisters, who was aged 13 at the time, climbed into her mother’s bed to be in her “warm spot”.
The man had sex with the girl and she became pregnant.
The court heard on another occasion the man asked the older sister, who was aged between 15 and 16 years and suffers from a mild intellectual disability, for a cuddle and then begged her for sex.
The man indecently assaulted the girl and the girl’s mother found her partner on top of the girl.
In December 2014 the mother confronted her partner about the abuse and he was told to leave.
When interviewed by police officers the man admitted engaging in sexual acts with the younger sister and said he may have had her confused with her mother.
He told police the girl played up to him.
The court heard he suffered from depression and post traumatic stress disorder after losing his home and business in the Black Saturday fires.
Judge Dean said the man pleaded guilty at the committal mention and had no prior convictions.
He said the fact a victim fell pregnant was an aggravating factor of the offending.
He said the offending was serious, the court had to deter him and others and he had to be punished for what he had done.
Judge Dean said a victim impact statement from the mother told of the profound and traumatic effect the crimes had on her children, herself and the whole family unit.
He said he accepted the man had demonstrated remorse and his prospects for rehabilitation were good.
The man will be on the sex offenders register for life.
In term of a sentencing discount for the guilty pleas, Judge Dean said the defendant's plea reduced the sentence from eight years' imprisonment with a non-parole period of five years.
The maximum penalty for incest is 25 years’ imprisonment