Director of Public Prosecutions v Adcock (a pseudonym)
[2022] VCC 1206
•28 July 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARTIN ADCOCK (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE JOHNS |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 14 July 2022 |
DATE OF SENTENCE: | 28 July 2022 |
CASE MAY BE CITED AS: | DPP v Adcock (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1206 |
REASONS FOR SENTENCE
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Subject: Criminal Law Sentence
Catchwords: Incest – Indecent act with a child under 16 – Stepfather of victim – three separate incidents – Application of Bugmy principles – Reasonable prospects of rehabilitation
Legislation Cited: Sentencing Act 1991
Cases Cited: Bugmy v The Queen 249 CLR 571
Sentence:Total effective sentence of 11 years imprisonment with a non-parole period of 7 years and 6 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. McKenry | Office of Public Prosecutions |
For the Accused | Mr M. Reardon | Victoria Legal Aid |
HIS HONOUR:
1Martin Adcock[1], on 6 April 2022 after an eight-day trial you were found guilty by a jury of four charges of incest and one charge of committing an indecent act with a child under 16. The maximum penalty for incest is 25 years' imprisonment. The maximum penalty for committing an indecent act with a child under 16 is 10 years' imprisonment.
[1]A pseudonym.
Circumstances of Offending
2Your offences were committed against your de facto partner's daughter. You were your victim's stepfather. She had three younger half siblings who were your children with your victim's mother. The five of you lived as a family unit. You commenced offending against her when she was very young. You were found guilty of two charges that occurred when she was aged somewhere between seven and nine. There is some uncertainty as to the precise timeframe of offending as there often is with cases involving adults recalling childhood memories.
3Whether your victim was seven, eight, nine, 10 or 11 does not alter the gravity of your offending in any significant way, in my view. She was a primary school student in respect of Charges 1 to 4. She was very young.
4Charge 1. On the occasion the subject of Charge 1 you were home alone with your stepdaughter. She recalls her mother and siblings had left. She recalls they took a lot longer to return home than expected. She recalls the explanation for the delay was the car breaking down. You told her to have a bath. You ran the bath and left the water shallower than she was used to. She was uncomfortable with the idea of having a bath as she usually bathed with her siblings. She got in the bath, you got in with her. You knelt down and performed oral sex on your young victim. You inserted your tongue into her vagina. She was hitting you and saying, 'No'.
5Charge 2. After the episode in the bath you took her to your bedroom and again penetrated her vagina with your tongue.
6Charge 3. Some time in the period that followed this incident, when your victim was aged 10 or 11, you digitally penetrated her. This incident, the subject of Charge 3, took place in the lounge room whilst you were watching television with her. This incident occurred in the presence of two of your other children, who were watching television in front of you and your victim and were oblivious as to what was taking place behind them. You inserted your fingers into her vagina. She states that you worked your fingers inside her vagina and around her vagina and it lasted for minutes. She felt sick and froze.
7Charge 4. After removing your fingers you took her hand and placed it upon your erect penis.
8Charge 5 relates to an occasion when your victim was aged 13 and no longer living under your roof permanently. She came to stay with her mother and siblings and she slept overnight in a makeshift bed behind the couch in the lounge room. You preyed upon her, approaching while she appeared to be asleep. She pretended to be asleep. You violated her once again by inserting your fingers into her vagina.
Victim Impact Statement
9I will refer to your victim as Shay Charlton[2]. Shay Charlton read her victim impact statement to the court. She showed great strength and bravery doing so in uncomfortable and distracting circumstances. The impact upon her from your crimes was severe. Severe in her childhood, throughout her teenage years, and it continues to be severe.
[2]A pseudonym.
10You caused great pain and suffering to her by your actions and the impact of your criminal conduct continues to cause her much pain and suffering. The impact of your crimes will affect her for many years to come. The psychological and emotional injury you have caused is significant, but you also stole her childhood, deprived her of a healthy childhood experience and memory. Your conduct has damaged perhaps irreparably, her relationship with her mother and siblings. I take the impact upon her into account.
Objective Gravity of Offending
11Offending against young children is inherently serious. The crime of incest carries a maximum penalty of 25 years' imprisonment, which is a reflection of the severity of which parliament and the community view the conduct. The protection of children in our communities is of paramount importance. The crime of incest by a parent is a heinous offence. Children rely upon parents for safety and comfort. Your abuse of Shay Charlton represents a gross breach of that duty. Your abuse represents a gross breach of trust.
12Your offending as a much older stepfather against your young, vulnerable stepdaughter is abhorrent and I must impose sentences that strongly condemn and denounce your behaviour.
Personal Circumstances
13You were one of 12. All but two siblings were half-siblings. I was told your father had Aboriginal heritage and that whilst you have not identified as Aboriginal in your life up to this point you are interested in exploring your heritage further. Your family was poor and rarely stayed in one place for long. Your childhood was extremely disadvantaged and attended by trauma. I accept that you were exposed to violence and sexual violence as a child. I accept that you often went hungry and during your family's lowest periods, scavenged for food at the tip. I accept that you began consuming alcohol regularly from the age of 12 or 13. Your use of alcohol at such a tender age is reflective of the dysfunctional family environment you grew up in, the acute socio-economic disadvantage you experienced and the trauma you experienced as a child. You also began smoking cannabis in your teenage years and continued through adulthood. You acknowledge that this has limited your career opportunities somewhat.
14Of relevance to your childhood experience was the separation from your mother and siblings for extended periods in infancy, including the first 18 months of your life due to infirmity in relation to your heart. Arrhythmia plagued you during adulthood and you had a cardiac ablation 10 years ago. You left school without completing Year 10 for reasons unrelated to capacity, interest or behaviour, but due entirely to your family's transient lifestyle and dire financial circumstances.
15To your great credit you obtained a Certificate IV in IT programming and have maintained employment for the most part throughout your life. I will not summarise your work history and other personal circumstances herein but I refer to Exhibit 1, the defence outline which sets out these matters in detail.
16Your achievement of that Certificate IV is not to be under-estimated given your impoverished upbringing socially, emotionally and financially, and your limited educational opportunities.
17The traumatic and disadvantaged background I have referred to enlivens considerations often referred to as the Bugmy v The Queen (“Bugmy”)[3] principle. Trauma, including exposure to sexual violence and abuse and disadvantage and the experiences that have flowed from those circumstances or related to them, have shape you as an individual. Those factors are an appropriate lens through which to assess your moral culpability. Through that lens your moral culpability is viewed in a slightly better light than if you were an individual who experienced a stable and enriched foundation in your formative years.
[3]Bugmy v The Queen (“Bugmy”) 249 CLR 571.
Relationship History
18You were married for 13 years from the age of 21. You did not have children with your former partner. Thereafter you commenced a relationship with Natasha[4]. That relationship was volatile at times. Mutual drug use was also a feature of that relationship. Your victim, Shay Charlton, is Natasha’s daughter from a previous relationship. You and Natasha have three other children now
aged 19, 17 and 11. For the past two years you have been in a relationship with Andrea[5]. Andrea attended court on your behalf at your plea hearing and also provided a written testimonial on your behalf, which is Exhibit 4. Andrea speaks highly of you and your relationship with her and her family.[4]A pseudonym.
[5]A pseudonym.
19I received another written testimonial of your character from Mr Milne[6]. I accept that you are loved and respected and that those close to you have difficulty accepting your commission of these heinous crimes. These crimes are out of character. You have a limited criminal history. Your criminal history points to the history of dysfunction I have summarised. It is not of much relevance in the sentencing exercise before me.
[6]A pseudonym.
Carla Lechner Report
20I accept the findings of Ms Lechner in her report as to the sequelae of your complex trauma history of childhood abuse and neglect. In her report dated
7 July 2022 Ms Lechner writes:This has given rise to symptoms of complex PTSD, such as chronically low self-esteem, interpersonal mistrust, hypervigilance and poor emotional and behavioural regulation.
21I have also taken into account Ms Lechner's risk assessment in arriving at the view that you can be considered high to moderate risk of sexual reoffending.
Prospects of Rehabilitation
22Your prospects of rehabilitation are reasonable given my assessment of risk, your antecedents and given your employment history.
Custodial Experience
23I take into account the circumstances prevailing in custody at present. I also take into account that you are not a young man. The sentence I impose represents a significant part of your remaining years and you are not in perfect health. Your PTSD symptoms will make life in prison harder. Custody will be particularly burdensome for you.
Serious Sexual Offender Provisions
24When sentenced in respect of Charges 3 to 5 you will be sentenced as a serious sexual offender given the sentences I will impose on Charges 1 and 2. I direct that that be entered into the record of the Court.
25In sentencing you for those charges I must regard community protection as the principal sentencing purpose although other purposes are not excluded. There is a presumption of cumulation also in relation to sentences I impose on Charges 3 to 5. The principle of totality applies and I will make orders for concurrency to give effect to that principle.
26Charges 1 and 2 occurred during a single incident, as did Charges 3 and 4. As I touched on when I was reviewing the gravity of the offence and the need to strongly condemn it and denounce your conduct, it goes without saying that general deterrence is also of paramount importance and I take it into account, particularly with regard to the protection of young children.
Sexual Offender Reporting Provisions
27You are subject to reporting conditions by virtue of your conviction of the offences before me. The period of reporting is life.
Sentence
28Turning to sentence now, Mr Adcock, and you can remain seated. I sentence you as follows.
29On Charge 1 you are to be sentenced to seven years' imprisonment.
30On Charge 2, seven years' imprisonment.
31On Charge 3, seven and a half years' imprisonment. This will be the base sentence.
32On Charge 4 you are to be sentenced to three years' imprisonment.
33On Charge 5 you are to be sentenced to seven and a half years' imprisonment.
34I make the following orders for cumulation and concurrency. Twelve months of each of the sentences imposed on Charges 1 and 2 are to be served cumulatively on each other and on the sentence imposed on Charge 3 and other sentences imposed today. All but three months of the sentence imposed on Charge 4 will be served concurrently, leaving three months to be served cumulatively on other sentences. All but 15 months of the sentence imposed on Charge 5 will be served concurrently, leaving 15 months cumulative on other sentences.
35That makes a total effective sentence of 11 years' imprisonment.
36I set a non-parole period of seven and a half years.
37I note that you have served 112 days of pre-sentence detention, and as I indicated, I make the order of reporting for life and those documents will have to be forwarded to you in custody, Mr Adcock.
38All right, Mr McKenry, any other matters?
39MR McKENRY: On my math I had 113 days' pre-sentence detention, Your Honour.
40HIS HONOUR: I will declare 113 days pre-sentence detention.
41MR McKENRY: Thank you.
42HIS HONOUR: Ms Howard, anything else?
43MS HOWARD: Nothing further, Your Honour.
44HIS HONOUR: All right, thank you. Yes, we'll adjourn the court.
45COUNSEL: As Your Honour pleases.
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