Director of Public Prosecutions v Afoa (a pseudonym)

[2020] VCC 1495

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOHN AFOA (A PSEUDONYM)

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JUDGE:	HER HONOUR JUDGE RIDDELL
WHERE HELD:	Melbourne
DATE OF HEARING:	7 September 2020
DATE OF SENTENCE:	16 September 2020
CASE MAY BE CITED AS:	DPP v Afoa (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2020] VCC 1495

REASONS FOR SENTENCE

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Subject:   CRIMINAL LAW – Sentence      

Catchwords:                  Sexual Penetration of Child Under 16 – Serious Sexual Offender – Already serving sentence – Totality – New non parole period

Legislation Cited:     Sentencing Act 1991 – Sex Offenders Registration Act 2004

Cases Cited:R v Verdins [2007] VSCA 102 – DPP (Vic) v Dalgliesh (a pseudonym) [2017] VSCA 148 – DPP (Vic) v Dalgliesh (a pseudonym) (2017) 262 CLR 428 – R v Rich (No 2) (2002) 4 VR 155.

Sentence: Two years and eight months' imprisonment – 10 months cumulation on sentences already being served – 8 months additional non-parole period

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Roodenburg	Office of Public Prosecutions
For the Accused	Ms E. Clark	Stary Norton Halpen

HER HONOUR:

1John Afoa[1], you have pleaded guilty to one charge of sexual penetration of a child under 16 years.

[1] The name of the accused has been changed to protect the identity of the victim.

2That child, Monique Chiang[2], was a friend of your step-daughter, Kelly[3].  Monique’s mother and your wife were long-time friends and the children had become friends too.

[2] Pseudonym

[3] Pseudonym

3The offending happened in the period between January 1999 and September 2000, when you were aged approximately 35 years old.  Monique was about 13 or 14 years old.

4You were living with your wife, your daughter, your step-daughter Kelly, and your parents in law, in Devon Meadows.

5Monique and her family had visited you for a barbeque dinner and Monique was invited to stay the night.  You had been drinking excessively.

6She was staying in a bedroom with Kelly, in separate beds.  At some point during the night you went into Kelly’s bedroom.  Monique was asleep but was woken by you kissing her on the lips and with your tongue.  You were kneeling on the floor beside the bed with your hand touching Monique’s breasts.  Those are uncharged acts.  She said 'no' to you.

7You then put your hands down Monique’s pyjama pants and put your fingers inside her vagina Monique kept whispering to you, 'No, get off me.  Please stop'. You then positioned yourself on the bed and began kissing Monique on the neck.  During this activity your fingers were still inside her vagina.  Monique tried to push you off but you were too heavy for a young girl.  Those are the events which constitute Charge 1; sexual penetration of a child under 16.

8That offending was interrupted when someone entered the room and screamed.  Monique believed it was your mother in law, but your wife says she saw you go into the bedroom and followed you, pulling you off Monique by the hoodie and helping you back into your own bed.

9Monique attempted to get into bed with Kelly, but ultimately she stayed in her own bed and cried herself to sleep.  The next morning she asked your wife to call her mother so that she could go home.

10While she waited, Monique was outside the house with your step daughter Kelly, playing on a swing set.  You sent Kelly inside before telling Monique that what had happened was 'your secret' and that she could not tell anyone what had occurred.  You tried to buy her silence by offering $20, which she refused.

11Monique made a complaint to her mother later that day, telling her that you had kissed her and touched her breasts, but not about the digital penetration.  Years later, in an online conversation, Monique told Kelly what you had done. She then disclosed to her mother that you had also digitally penetrated her.

Interview and Court Process

12You were interviewed by police on 17 August 2017 and made denials, saying this was a 'very big story coming from a little kid'.

13A committal proceeded on 4 March 2019 and included cross examination of Monique, her mother, your wife and your step-daughter, as well as the informant.

14The matter resolved in March 2020, after a tendency notice was filed relating to offences committed against your step-daughter and your niece, and of which you had been found guilty in 2017.

Subsequent Conviction and Sentence

15Those offences are relevant to my consideration in a number of ways to which I will return.  In short, you are currently serving a sentence in relation to offences of sexual penetration of a child under 10, sexual penetration with a child aged between 10 and 16, indecent assault, two charges of incest, indecent act with a child under 16, assault and recklessly causing injury.

16That sentence was imposed by His Honour Judge Ryan in this court on 3 March 2017.  It related to two indictments; one where you had run a trial and the other where you had pleaded guilty.  The time period of that offending, being between 1986 to 2004, overlaps with this.  The total sentence imposed by His Honour was one of 11 years eight months' imprisonment with a non-parole period of eight years.  Pre-sentence detention of 14 days was declared.  I will return to those matters in due course.

Sentencing Principles

17Sexual offending against children is a most serious offence.  It is the type of offence which undermines the fabric of society.  It is abhorrent and worthy of condign punishment.  The relevant maximum penalty for this offence is 10 years' imprisonment.

18The sentence I impose must generally deter others from committing such offences. That is, other people who would offend in this way against a young girl must know that a term of imprisonment will be the likely result.

19The sentence I impose must denounce your behaviour on behalf of the courts and the community.  These courts and the community well understand the damaging effects of sexual offending against children.  As here, there is often an immediate impact and a long term impact which affects almost all aspects of a victim's life.

Victim Impact

20Ms Chiang read a most eloquent and articulate victim impact statement.  It underlines the way in which your behaviour has influenced her life, describing it as a 'shadow' over her.

21She was a young girl and this first sexual experience tarnished her intimate relationships as she fought to replace this first memory with others.  She started associating with older boys, using drugs, placing herself in danger of further abuse.  Her schooling was affected, as her grades dropped and she began to fall behind.  Her mother, who has also provided a victim impact statement, says that her outgoing, happy girl became a sullen withdrawn teenager.  She recognised there was something wrong but Monique shut down.

22Ms Chiang was diagnosed with depression and anxiety in her late teens.  She was medicated to cope with panic attacks.

23Your assault of her has impacted her in employment, causing her distress when she is required to work on child safety issues.

24It has affected her intimate relationships and required a great deal of patience and trust from her now husband, established over a long period of time before she would even meet with him.  She already had a two year old daughter but your assault of her meant she could not trust her partner to look after her daughter or leave her alone with him.  She is sad to say that her heart has skipped a beat many times when her husband held their own daughter or helped her out of the shower or changed a nappy.  Intimacy is difficult and involves intrusive flashbacks.

25Her own capacity to parent has been affected.  She questions the motives and intentions of other adults – teachers, friends, other parents, family.  She has ‘drilled into’ her own children body safety and issues around inappropriate touching to a point where she fears she has crushed their innocence in an effort to ensure they are not in the situation you put her in.  She is nervous when they go on sleepovers or school camps.

26Her mental and physical health has been affected, requiring repeated periods of medication for anxiety and depression.  Over the last four years, since she made her statement to police, her medication has been increased on five occasions.  She has required heart medication to lower her heart rate in the lead-up to court dates.  She has gained weight as a side effect of medication and her need to comfort eat.

27Isolation during this final period of these proceedings has been particularly difficult.  Without regular support networks there have been days where she says she simply could not get out of bed.

28In addition, she bears a guilt that her friend, your step-daughter, confided in her that night, and that she did not speak up to help.  You were offending in that period against both your step-daughter and your niece.  Ms Chiang feels a guilt that had she spoken out that offending may have come to light.

29Ms Chiang’s mother, Jacqueline[4], also made a victim impact statement.  She was friends with your family and is the godmother of your daughter.  She carries a guilt at having left her own daughter with you.  She knew when she collected her the next day that something was not right.  Monique confided but, as I have said, she shut down.

[4] Pseudonym

30Ms Chiang’s mother, like many mothers who are often the silent victims in these matters, blames herself for not protecting her child.  She says, 'I trusted the accused with my baby.  I trusted that he would look after her and protect her like her own father would.  The accused was a family man, a husband, father and step-father.  Why would any man, especially a father, do this to a child?'

Objective Gravity of your Offending

31The objective gravity of your offending in my view makes it a reasonably serious example of this type of offending for the following reasons.

32First, it involved a gross breach of trust.  That breach related to a number of people.  Firstly, the trust of Monique Chiang – a child, under your watch, and who was entitled to your care and protection.  She was in your home and was a child known to you, and known well to you through family relationships.  She referred to you as 'Uncle John'.  The offence occurred in the bedroom of your step-daughter, a place where Ms Chiang was entitled to feel safe.

33Secondly, it was a breach of trust of both of her parents.  They had left her with you, believing you would look after her, and certainly that you would not cause her harm in this most serious way.

34Thirdly, it was a breach of the trust of your own wife.  She was the friend of
your wife.  Your offending no doubt impacted that relationship also.

35Turning back to the objective gravity and my assessment of those factors.  Secondly, this was a young girl, 20 years your junior.  She was innocent and at an age where your behaviour was likely to have – and did have – a profound effect on her sexual development and on her ability to trust others.

36Third, this was a penetrative offence where you placed multiple fingers into her vagina.  Although penile penetration carries additional risks to the victim, higher courts have described digital penetration as being of equal violation.  It was committed in the context of the uncharged acts which saw you kiss her with your tongue, touch her breasts and force yourself on top of her.  It was of some duration, continuing as you lay on top of her.

37Fourth, it continued despite her protests.  Her repeated requests that you stop what you were doing should have brought you to your senses, but you persisted.

38Fifth, it only stopped because you were interrupted.

39Sixth, the next day, obviously knowing what you had done, you isolated her by sending your step-daughter inside and you tried to buy her silence with $20.  You told her this was 'your secret' and that she could not tell anyone what occurred.

40On its face, your moral culpability is high.

41Sensibly, your counsel accepted that a term of imprisonment with a non-parole period is the only appropriate sentence here.  That, of course, is somewhat complicated by the fact you are undergoing sentence.  Counsel both made submissions regarding issues of totality, cumulation and concurrency, to which I will return.

Personal History

42Your personal history is outlined in detail in the psychological report of Dr Dion Gee and the neuropsychological report of Ms Lauren Scott.

43You are now aged 55 years.  You are of Samoan descent, one of 12 children.  You were born in Samoa in an intact family environment.  Your family adhered to the Mormon faith.  Your parents, it seems, were strict, and use of physical discipline occurred.

44Dr Gee describes your formative years as thwarted by a degree of social, cultural and emotional disruption, disadvantage and dislocation.  Your transition to adulthood was also lacking in development of adaptive and pro-social experiences.

45When you were 13 your parents and younger siblings relocated to Salt Lake City to follow their Mormon faith.  It is unclear to you still why you did not go with them, however your aunt and uncle wanted you to live with them.  You initially relocated to New Zealand at age 14 before coming to Australia as an 18 year old.

46You had very limited schooling with no formal education in Samoa and only a year in New Zealand.  You then worked in a wool mill.  Once in Australia you were employed throughout your life in low-skilled factory roles until your incarceration in 2017.

47You maintained contact with your family of origin.  Your mother and sister died on the same day, when your mother was visiting in Melbourne.  Your sister was in Salt Lake City.

48In 1990 you met your wife, marrying in 1994 and producing your only daughter.

49In 2009 your offending against your wife's daughter and your niece came to light and your relationship with your wife and daughter dissolved.  You have had almost no contact since.  Your family of origin has also ostracised you.

50Since that time you have been isolated and living a fairly solitary existence.  Your faith and employment have kept you occupied.  You have been a solid worker in factories for 15 years; at times taking on additional responsibilities within your team.

51There are conflicting accounts of your use of alcohol over time.  You report you have not consumed it for over 20 years, which is in contrast to the prosecution opening.  In any event, you do not have any ongoing substance abuse issues.

Psychological and Neuropsychological Evidence

52Forensic psychologist Dr Dion Gee writes that you have a degree of cognitive distortion with deficits in intimacy and social skills as well as emotional and behavioural dysregulation.

53You have an IQ of 70 which, according to Ms Scott, clinical neuropsychologist, is in the extremely low range.

54Ms Scott assessed your neurological function and found that you present with moderate to severe impairments in certain aspects of executive function.  Most relevant to my assessment are impairments in your response inhibition and impulse control.  You also have mild impairments in a range of other cognitive functions.

55Ms Scott says behaviourally you present as impulsive with poor attention to detail and perseverative tendencies.  You have poor self-regulation and at times would be at risk of impulsive behaviours; particularly when other factors are operative to lower inhibitions.  She says your difficulties would reduce your capacity to appreciate abstract concepts such as risk, and to connect current actions with future consequences.

56Those impairments do not diminish your capacity to understand the wrongfulness of your actions, however would reduce your capacity to make reasoned decisions and appropriate judgments in the moment.  Ms Scott opines, in that way, that your cognitive and behavioural impairments were likely 'significant contributors' to your offending behaviour.

57Dr Gee stated:

'While Mr [Afoa's] impaired mental functioning might have predisposed him to act in an aberrant manner at the time of the index offence, from the available information there does not appear to be a direct causal nexus between the two'.

58The Court of Appeal have made clear that a direct causal nexus is not required before Verdins[5] principles are enlivened, however there must be rigorous evaluation of the expert evidence.

[5] R v Verdins [2007] VSCA 102

59In my view that evaluation here, on the basis of both expert reports, does establish the necessary basis for the application of Verdins.  In particular I accept the evidence of Ms Scott, which I have outlined.

60I accept that you have cognitive impairments, specifically those I have referred to as described by her, and these enliven consideration of the principles one, three and four of Verdins.  As much was conceded by the prosecution.

61The question remains to what extent any of those limitations were operating on you at the time of your offending and to what extent they should reduce your moral culpability and moderate general and/or specific deterrence.

62In my view, your impairment is not to a level where the community would accept that you are not an appropriate vehicle for deterrence.  You were a man able to work, have relationships and live independently in the community without issue.  You were, and remain, able to appreciate the wrongfulness of your actions.

63While I will make some allowance for your mental impairment when considering your moral culpability and the need for general and specific deterrence, the importance of deterrence in a sentence for offending such as this means any moderation must be modest.

Community Protection

64The fact that community protection looms large here also means your ongoing risk, in part due to your cognitive profile, is an important factor in formulating the appropriate sentence.  In other words, your personality structure means that your impulsivity and poor self-regulation mean you are likely to continue to be a risk to the community.

65Dr Gee, on testing, assessed you as a moderate risk of sexual reoffending.

Specific Deterrence and Prospects of Rehabilitation

66Your other sexual offending, against both your step-daughter and niece, emphasise that fact.  Those offences do not aggravate this offending but they are clearly relevant to my assessment of your prospects of rehabilitation, the need for specific deterrence and the need for community protection.

67Your cognitive limitations do play into your ability to have insight into your offending and, in turn, to your prospects of rehabilitation.  You continue to deny the offending and, as such, determining the reasons behind it is difficult. 
Ms Scott notes your reduced capacity for abstraction, limited self-regulation and impulsivity all reduce your capacity to evaluate your own behaviour.  Those impairments pose a barrier to fully understanding the consequences of your actions and to expressing appropriate remorse.  In my view your prospects of rehabilitation are somewhat guarded at this stage.

68You do have capacity to learn new material and you do have adequate basic attentional skills and communication stills to sustain involvement in therapy.  To that end, sexual offender programs should assist you.  I accept that you have expressed a willingness to engage in sex offender treatment.

69Ideally, given your cognitive limitations and barriers you should be engaged in treatment as soon as possible.  Based on the expert evidence you will require time to absorb treatment and to make any changes.  I would commend the reports of both assessors to those administering treatment in custody.

70In terms of your prospects of rehabilitation I do note you are a person with a solid, long work history.

71Further, you have not reoffended in any way since 2004, and indeed any offending prior to this matter, or your other sexual offending, is very limited and barely relevant to my sentencing task.  Those matters stand you in good stead.

Plea of Guilty

72You have pleaded guilty to this offence and you receive the benefit of that plea.  A plea of guilty has a utilitarian benefit in that it saves the time and cost of a trial.  I take those matters into account.

73I also take into account the particular value of a plea of guilty in the current COVID-19 pandemic, where all trials in this court have been vacated since
10 March 2020.  In your case, your plea was entered in March 2020.  I take that into account.

74It was not suggested that your plea is an expression of remorse.  Indeed, I can find no evidence of remorse in any of the material filed on your behalf.

75You conducted a contested committal, as is your right, however that means your plea did not spare the victim and other family members from the additional stress and trauma of court proceedings.  It is not an early plea, however it does save the additional trauma of a trial and the additional delay; in particular during the current pandemic.  You receive the benefit of your plea.

COVID-19

76You are serving your sentence during the COVID-19 pandemic.  As with the broader community, prisons are places of heightened anxiety in that setting.  Prisoners, however, are unable to make autonomous choices about social contact and distancing.

77Education and rehabilitation programs are suspended where you had previously been engaging regularly in courses directed at English, Maths, History and Kiwi Culture.  You also attended weekly church services, where you played guitar.  All of those outlets are currently suspended.  Psychological and medical support is offered via telehealth.  Work opportunities are limited, although you are engaged making signage.  Access to recreational facilities, such as gym and libraries, is generally more limited.  Lockdowns are occurring and the virus has reached a number of prisons.  I take those matters into account.

78I also take into account that you are a person with no external supports.  You receive no visits and you have no phone contact with anyone.  I accept that makes your time in custody more isolating and difficult.

Serious Offender

79In 2017 you were sentenced on a number of charges as a serious sexual offender.  Any sentence of imprisonment which I impose on the charge of sexual penetration of a child under 16 will also be a sentence as a serious sexual offender.  That fact will be entered in the record.

80The consequences of serious sexual offender status are two-fold.  One, community protection becomes paramount, and two, there is a presumption of cumulation for any sentence on any other.  It was not suggested a disproportionate sentence is called for here and nor will I impose one.

81Counsel both made submissions in relation to whether the sentence I impose should alter the head sentence and/or the non-parole period.

82In my view there is a degree of cumulation warranted on both the head sentence and the minimum term you are serving.  That must be so in order to reflect the fact that this is a separate victim and distinct offending.  Although committed in the sea of offending against your step-daughter and niece, it represents an opportunistic attack on a different child under your care.  Even if dealt with at the time of the earlier plea in my view the result would have been the same; namely separate recognition of Ms Chiang and the offending against her.

83The degree of cumulation must take into account totality and I am cognisant of that fact.

Current Sentencing Practices

84I take into account current sentencing practices for offending such as this and the comments of both the Court of Appeal and the High Court in DPP v Dalgleish[6].  Each case has its differences and similarities and, as such, other cases are of limited assistance.  I must impose a just sentence in all the circumstances and that is what I have endeavoured to do.

[6] DPP (Vic) v Dalgliesh (a pseudonym) [2017] VSCA 148; DPP (Vic) v Dalgliesh (a pseudonym) (2017) 262 CLR 428

Sentence

85Mr Afoa, on the charge of sexual penetration of a child under 16 you are convicted and sentenced to two years and eight months' imprisonment.

86I direct that 10 months of that sentence is to be served cumulatively upon the existing total effective sentence imposed on you by Judge Ryan on 3 March 2017.  That means your new head sentence will be one of 12 years and six months' imprisonment.  You have already served a significant portion of that sentence and of course you will get the benefit of the time you have already served.

87Pursuant to s.14 of the Sentencing Act 1991 I must fix a new single non-parole period. It is critical that I make clear when that period commences.

88There are two ways this can be done.  I can either backdate the new single non-parole period I declare to the date of Judge Ryan's sentence or I can direct that it commences from today.  I am cognisant of the views expressed by Brooking JA in R v Rich (No 2)[7] that 'there should be uniformity of practice' and that 'all new single non-parole periods should be made to commence on the day on which they are fixed'.[8]

[7]R v Rich (No 2) (2002) 4 VR 155.

[8]Ibid 166–7 [106] (Brooking JA, Winneke P and Charles JA agreeing at [9]).

89Apparently a number of judges of this court have adopted the latter approach in the past and that has caused significant problems in the manner in which the sentence calculation authorities in Corrections Victoria interpret the order.  What is critical is that there is certainty as to when the new single non-parole period I am fixing today commences, and I will provide that certainty in these reasons.

90I fix a new single non-parole period of eight years and eight months' imprisonment commencing on 3 March 2017; the day upon which you were sentenced by Judge Ryan.  My intention is to add a period of eight months' imprisonment to your current earliest parole eligibility date.  If my orders do not have that effect I reserve liberty to apply to the parties to mention this matter so that any need for clarification of my orders can be dealt with.

91There is no pre-sentence detention to declare in the case before me.  Judge Ryan's declaration of 14 days pre-sentence detention remains unaffected by my orders.

92Turning to s.6AAA.  But for your plea of guilty the sentence I would have imposed would have been one of five years' imprisonment and would have increased your non-parole period by three years' imprisonment.

93Application was made for registration pursuant to the Sex Offender Registration Act.  You are already registered for life as a result of the 2017 sentence, however as this is a Class 1 offence you are subject to mandatory registration; again for a period of life.  Those matters will be reflected in the record of orders on this sentence.  You will also be provided, Mr Afoa, with paperwork today notifying you of your reporting obligations.  I invite you to sign that paperwork when you receive it, to indicate that you have been given it, and that signed document will be returned to me.  Are there any issues to raise, counsel?

94COUNSEL:  No, Your Honour.

95HER HONOUR:  All right.  Thanks very much.  I did also want to add to my reasons that both Ms Roodenberg, on behalf of the prosecution, and Ms Clark, on your behalf, provided thorough and well-reasoned written and oral submissions in this matter and I thank them for their preparation and assistance.  All right, we will now adjourn.

96COUNSEL:  Thank you, Your Honour.

97HER HONOUR:  Thanks very much, counsel, and to those others who are present.  Thank you.

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