Director of Public Prosecutions v Abbott (a pseudonym)
[2020] VCC 1480
•17 September 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BENJAMIN ABBOTT (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE HIGHAM |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 5 May 2020 and 2 September 2020 |
DATE OF SENTENCE: | 17 September 2020 |
CASE MAY BE CITED AS: | DPP v Abbott (A pseudonym) |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1480 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence — Indecent assault of a person under 16 years — Plea of guilty — Historical sexual offending
Legislation Cited:
Cases Cited:
Sentence: 18 months imprisonment wholly suspended.
Section 6AAA declaration: 18 months imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Miss S. MacDougall | Office of Public Prosecutions |
For the Accused | Mr R. Thyssen | Robyn Greensill & Associates |
HIS HONOUR:
1Benjamin Abbott,[1] you have pleaded guilty to one charge of indecent assault of a person under 16 years for which the maximum penalty is a term of imprisonment of five years.
[1] A pseudonym.
2Tendered on the plea as Exhibit 1 was a summary of prosecution opening in which the detail of your offending was set out.
3In brief, the circumstances of your offending were as follows. The victim in this matter is Chelsea Bryan,[2] the daughter of your sister, Gloria.[3] You were her Uncle. The offence occurred during the calendar year of 1987.
[2] A pseudonym.
[3] A pseudonym.
4Chelsea was born in 1979 and was thus seven or eight years old at the time of your offending against her. Chelsea had a brother, Simon,[4] who is three years older than her.
[4] A pseudonym.
5In 1987, you were living at an address in Fawkner. You had not long separated from your first wife with whom you had had three children. Chelsea and her family also lived in the area. There were times when you would babysit both Chelsea and Simon when their mother was otherwise engaged at the local bingo hall.
6On one such occasion when Simon was in the lounge, listening to some music, you picked Chelsea up, placed her on the kitchen bench, spread her legs open and touched her vagina over the top of her clothing. Simon came into the kitchen and saw you offending against your niece. When asked by Simon what you were doing, you walked away without replying.
7Chelsea and Simon talked with each other about the incident and at some point thereafter, told their Mother. Surprisingly, police were not contacted at that time. You, however, no longer babysat either child.
8Your victim reported the matter to the police in March 2016 and provided a video and audio-recorded statement. You were interviewed on 20 December 2016 and vehemently denied the offending. You denied ever looking after the complainant and her brother.
9You firmly suggested in that record of interview that the allegation was made by Chelsea in an attempt to extract money out of you, that she could spend on drugs. Your record of interview contained a tissue of lies and knowingly false assertions on your part.
10You were charged in March 2017 and a contested committal took place over two days in October 2018 at which your victim gave evidence.
11It was put to your victim by learned counsel, presumably upon your instructions, that the allegations were a deliberate concoction representing an attempt by her to place the blame for all the many problems in her life upon your apparently innocent shoulders.
12A trial was listed for October 2018. A month before the trial in September 2018, your victim Chelsea suffered a massive heart attack and died.
13A new trial was then listed for 11 November 2019. The matter resolved and a plea of guilty was entered on 8 November 2019.
14Tendered on the plea, Exhibit 2, was a victim impact statement from Simon Hall, Chelsea's brother. He writes;
'My sister Chelsea was a fun, bubbly child. We had lots of laughs. We would play together and hang out all the time, as there was only the two of us.'
'When Chelsea was violated and sexually assaulted by Mr Abbott, it changed everything and Chelsea was never the same. I truly lost my little sister from that night onwards and she lost her innocence at a very young age.'
15Simon details your victim's life story. She withdrew inside herself. She left home at 15 and, after ending a relationship with the father of her two children, there followed a cycle of relationships with violent men, ever increasing substance abuse, depression and repeated attempts at taking her own life. Her health became shattered and she suffered a massive heart attack and tragically she died alone.
16Exhibit 3 was a victim impact statement from Christy Dunn,[5] the eldest daughter of Chelsea. She writes movingly of the impact upon your victim of losing her children due to her drug use, and of how this developed into worsening addiction. It seems that prior to her passing, she had made strenuous efforts to reclaim her life and to connect again with her children. Christy continues:
'This gave her so much more motivation to continue on and to do the best she can to live the best possible life. This was the happiest she had been in a long time. Chelsea had found help in a Women's Refuge and began her new life. Seeing Chelsea getting her life back on track and doing things right have found her family so proud of her, but unfortunately it was all taken away so fast.'
[5] A pseudonym.
17Now whilst such matters cannot overwhelm the sentencing process, there can be no doubt that your offending has had a life-long and devastating impact upon your victim and her immediate family.
18I turn now to your personal circumstances. You were born in May 1960 and you are now 60 years of age. You were 27 at the time of this offending. You were born and raised in inner Melbourne. Your father was an airman in the RAAF, and your mother was fully employed looking after you and your five siblings. You were the second-last child in the family. You were educated to Year 10 and over the years have worked consistently in the transport industry as a truck driver, mainly doing interstate runs.
19In 2010, you suffered a workplace injury. You now have a steel plate in your arm and have a bulging disc. You received a modest payout from which you purchased a house in the small rural settlement where you currently live with your wife. I am told you live a quiet life there, helping out elderly citizens.
20Tendered as Exhibit 7 BA, was a bundle of references from neighbours speaking of your good works in the local community. You are in receipt of a Disability Pension and you are prescribed medication for high blood pressure and for relief of your chronic pain issues.
21You have a relevant prior history. In October 1980 for offences of penile/vaginal incest of your younger sister and indecent assault upon two of your nieces, you were sentenced to a total effective sentence of 18 months imprisonment with a direction that you serve a minimum of nine months.
22The violation of your sister began when she was but ten years of age. It continued for approximately five years and included the use of force and coercion and threats of harm to her and her new boyfriend should she not continue to satisfy your sexual demands. You were a child during the currency of that offending, aged between 13 and 17.
23In January 1996 you were sentenced to a total effective sentence of six months for indecent act and assaults upon your then stepdaughter who was aged 16 at the relevant time. The offences were committed in 1990, that is, after the offending for which you fall to be sentenced today.
24In May 1998, you were again in front of the courts for the indecent assault of a female friend of your stepson. The offending occurred on the occasion of his - your stepson's 14th birthday party. You were dealt with then, leniently, it might be thought, by means of a four month intensive correction order.
25You have had three long term relationships, the first of which gave you three sons, children with whom I am told you now have no contact. That relationship ended in part due to your family violence when under the influence of alcohol. It seems you have abused alcohol for most of your adult life. Your second relationship ended after 16 years, again a relationship marked by your practise of family violence. Your current relationship has also been punctuated by your family violence.
26In 2017, for reckless conduct endangering serious injury and making threats to kill, you were sentenced to a term of imprisonment for 180 days and a 12 month community corrections order. I am told that during the course of that order, you completed an anger management program and now have reconciled with your partner.
27I make clear, Mr Abbott, you are not to be re-sentenced for those matters which you have already been dealt with by the court, however, those matters do impact my assessment of the need for specific deterrence, of your prospects for rehabilitation, and of the need for community protection from you.
28The plea was adjourned to enable an assessment report to be prepared for the assistance of the court. Exhibit 10 on the adjourned plea was a report from Dr Bonnie Albrecht, Senior Forensic Psychologist at Forensicare, dated 7 August, 2020.
29Dr Albrecht conducted a virtual assessment lasting three hours. You were reluctant to provide details regarding your childhood sexual experiences, but hinted at yourself being a victim of sexual abuse at the hands of your older sister. You told Dr Albrecht that the offence against Chelsea occurred during the breakdown of your first marriage and whilst you were caring for your sons and niece and nephew.
30Dr Albrecht states that this childminding arrangement was, 'irregular' thus suggesting the role of opportunity in the offence which likely also involved sexual arousal in the absence of, or reduced opportunity for sexual gratification.
'He was apparently drinking heavily during this period so alcohol may have impacted on his decision-making and urge regulation skills. However these factors are based on supposition as Mr Abbott cannot recall the event.'
31Significantly, Dr Albrecht found you did not evidence a personality disorder. She could find no distortions of thinking and perception, common to child sex offenders. Despite being in the community with little community supervision, you have not engaged in sexual offending against children for over 20 years.
32Dr Albrecht assessed your risk of further committing of sexual re-offence as low, although that is a conclusion I view with some circumspection, having regard to the veil of forgetfulness that you draw over your past and Dr Albrecht’s lack of an accurate and correct timeline as to your offending. As Dr Albrecht noted, ‘some aspects of Mr Abbott's offending history remain unclear’.
33Miss MacDougall, learned counsel on behalf of the prosecution, submitted that considerable regard should be given to your plea of guilty in the circumstances of this case, where your victim had passed away. Your plea therefore had significant utility.
34She submitted your plea was also evidence of your remorse. I do not agree that your plea is indicative of any remorse. She submitted that a term of imprisonment was the only appropriate disposition having regard to the sentence purposes of general and specific deterrence, just punishment and community denunciation, purposes which are always to the fore in offending of this nature.
35However, she submitted that having regard to the circumstances of this case, to the delay, to the principle of totality, to the loss of opportunity of concurrency, a wholly suspended sentence was within range.
36On your behalf, Mr Thyssen in succinct submissions also urged a wholly suspended sentence as the appropriate disposition in your case. He relied upon your plea of guilty, which in view of the passing away of your victim, had significant utility and emphasised a willingness to facilitate the course of justice.
37The allegations were themselves historic. There has been delay, although you have gone on to reoffend. In view of your subsequent criminal history, however, you had arguably lost an opportunity for concurrency.
38You have not committed any sexual offence over the last 23 years. Your lifestyle, reduced libido, health issues and lack of access to children and therefore opportunity, all suggest, he submitted, that you no longer represent a threat to the community. He finally submitted inferentially that the principle of totality looms large.
39Mr Abbott, offending against children will always be viewed by the courts as serious offending. There has been a growing recognition by the courts of the lasting impact that such offending has upon children and how it can often lead to lives that are not fully lived. Children who have been sexually offended against have had their innocence and their sense of self stolen from them. They blame themselves for the acts committed against them by adults and for which acts they are completely without blame. They struggle to engage in healthy relationships. They struggle to find their place in the world, as indeed, the story of your victim makes quite clear.
40Crimes against children are crimes against our common future and against our common humanity, and the courts have repeatedly stated they will do everything within their power to protect children.
41Your victim, Chelsea, had been placed in your care for the evening, by her mother, while she went off to the bingo hall. Chelsea was but seven or eight years of age. Your act here reduced her to a mere object. It was driven solely I find by your own deviant sexual arousal. You gave no thought to the impact of your offending upon your victim. It was a gross breach of the trust that had been placed in you by Chelsea and by her mother.
42For you, it may well have been for you a casual act of sexual offending to which you at that time had become habituated, but the impact of that casual act upon your victim was life-long.
43It is moreover, Mr Abbott, difficult to reconcile your apparent inability to remember the incident, with the conduct by your counsel of the committal. You have demonstrated, in my view, no remorse. You had previously been before the courts for sexual offending against other young female family members. You well knew that what you were doing was wrong. Your moral culpability for this offending is, I find, high.
44In sentencing you I must have regard to a range of different factors. I must give effect to the principle of general deterrence, that is, to deter others from behaving as you did and I must give effect to the principle of specific deterrence. That is, I must deter you from any repeat of such offending. I must express the community's denunciation of your conduct.
45I am told that you have lost your libido and that you have no access to children of your target range in view of your quiet living arrangements. Nonetheless, I must consider the need to protect the community from you.
46I must take into account the effect of your crimes upon your victims and have regard to current sentencing practices, tempered by sentencing practices at the time of your offending insofar as they can be ascertained.
47I must have regard to the statutory maximum penalties then in force for the offence to which you have pleaded guilty.
48In short, I must try to balance your personal circumstances with the circumstances of your offending. My sentence of course, cannot give back to your victims, that which they feel has been taken from them. I am required by law to pass no longer a sentence than is necessary in all the circumstances of the case.
49General and specific deterrence and denunciation are the primary sentencing considerations in this case. Even though your offending occurred many years ago, a clear message needs to be sent from this court to anyone considering offending against children in their care, that if you are caught and brought before the courts, even many decades later, you will be punished. However, you have, subsequent to this offending, been dealt with by the courts for offending of a similar kind.
50The principle of totality and its compressing nature upon any sentence I pass, also weighs heavily in the balance and after long consideration, I am persuaded that in the particular circumstances of this case, all relevant sentencing purposes can be met by the imposition of a sentence that does not require you to lose your liberty today.
51So on the charge of indecent assault of a person under the age of 16 years, you are convicted and sentenced to a term of imprisonment of 18 months and I direct that the whole of that sentence be suspended for a term of 18 months.
52Now, Mr Abbott, as Mr Thyssen I'm sure has indicated to you and will do again, that means effectively you stay out of trouble for the next 18 months and that will be an end of the matter. However, should you commit an offence during the course of the next 18 months, you will fall to be dealt not only with for that offence, but you will also be brought back in front of me and the prosecution will apply for the imposition of that entire term. Is that clear, Mr Abbott?
53OFFENDER: Yes, Your Honour.
54HIS HONOUR: You understand that and I know that Mr Thyssen will emphasise the importance of that upon you, won't you Mr Thyssen?
55MR THYSSEN: I will, Your Honour.
56HIS HONOUR: Yes, all right. Pursuant to s.6AAA, had you not pleaded guilty, you would have been sentenced to an immediate term of imprisonment of 18 months. Pursuant to the provisions of the Sex Offender Registration Act [2004] you are now a registerable offender. The period of registration is for the rest of your life.
57HIS HONOUR: Now, I am sure Mr Thyssen will explain to you again, Mr Abbott, the requirements of registration. You need to go down to your local police station that maintains the register and report, introduce yourself and say I am now a registerable offender and I need to report and provide certain details. You are required to do that reporting every year, and the details you need to provide include details of any employment that you have, your address, your vehicle registration number should you have a vehicle, but importantly, in the current day and age, also all online personas you have. That means if you have an email account, then you have to give them your email address. If you game play - you may be a bit old for that, I do not know - but if you play games, you have to put your gaming identity. If you operate a website, offering care for oldies in the area, you have to give them the name of your website. Every single online identity that you have must be provided to the prosecution.
58Now Mr Abbott, can I make it clear. That provision is intended as a measure designed to protect children and the authorities take very seriously any breach of those provisions. So if you forget, on your head be it. Police almost invariably prosecute, and when they come in front of the courts almost invariably they are dealt with by an immediate term of imprisonment. I cannot impress upon you sufficiently how important it is that you abide by the requirements of the Sex Offender Registration Act. All right, Mr Abbott?
59OFFENDER: Yes, Your Honour.
60HIS HONOUR: All right, thank you very much. Mr Thyssen, thank you for your attendance and your submissions.
61MR THYSSEN: Thank Your Honour.
62HIS HONOUR: Miss MacDougall, likewise.
63MISS MacDOUGALL: Your Honour there is one other matter, and that is the forensic sample order.
64HIS HONOUR: Do we have it. I will make that order in chambers. We are just checking Miss MacDougall.
65MISS MacDOUGALL: Thank you, Your Honour.
66HIS HONOUR: All right, it has been e-lodged. I will make that order. Mr Abbott, I nearly forgot. I am making an order to permit police authorities to take a forensic sample from you. That means essentially just a sample of saliva and it is done just by putting in a Q-tip into your mouth so it is remarkably less invasive and less painful than a COVID-19 test.
67Now, I am making that order and I have to inform you that when police authorities come to your home to take the sample, should you refuse to provide them with a sample, then they are entitled to use such force as is reasonably necessary to take a forensic sample from you, and often times they embark upon a more invasive procedure, such as blood. Now, I am sure, Mr Abbott, there will not be any problem with that.
68So you have got two duties in the fairly near future. The first is to go down to the relevant police station and register, provide your details as a Sex Offender and that's going to be an ongoing obligation for the rest of your life, and secondly, when police officers come to take a forensic sample from you, to allow them to do that. All right, Mr Abbott?
69OFFENDER: Yes, Your Honour.
70HIS HONOUR: All right, then, thank you very much. Mr Thyssen and Ms MacDougall, you both have a good afternoon.
71MISS MacDOUGALL: If it please the court.
72HIS HONOUR: All right, thank you Mr Abbott for your attendance and to your respective instructors. I will stand down.
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