Director of Public Prosecutions v AJP
[2012] VCC 1830
•13 November 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No.
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AJP |
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JUDGE: | HER HONOUR JUDGE CAMPTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | Trial: 6 – 15 August 2012; Plea: 2 November; Further Plea: 13 November 2012 | |
DATE OF SENTENCE: | 13 November 2012 | |
CASE MAY BE CITED AS: | DPP v AJP | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1830 | |
REASONS FOR SENTENCE
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Subject: Incest – common assault – threat to kill
Catchwords: Incest with step son – Use of baton
Legislation Cited: Sex Offenders Registration Act
Cases Cited: DPP v DJ [2011] VSCA 250, R v TC [2011] VSCA 190, R v RBN [2011] VSCA 261, King v R [2011] VSCA 423
Sentence: TES 4 years and 3 months. NPP 2 years and 9 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms M. A. Mahady | Office of Public Prosecutions |
| For the Accused | Ms S. F. Thomas | Leanne Warren & Associates |
HER HONOUR:
1 AJP, you pleaded not guilty to five charges of incest, one charge of common assault and one charge of threat to kill. A jury found you guilty of one count of incest, being Count 6, one count of common assault, being Count 1, and one count of threat to kill, being Count 7.
2
The maximum sentence for incest changed from 20 to 25 years on
9 September 1997. The prosecutor has accepted that in the circumstances of this case the applicable maximum sentence is 20 years. For common law assault the maximum is five years, and for threat to kill the maximum is ten years.
The Offences
3 These offences were committed when you were in a relationship with CT between the first day of August 1998 and 31 December 1999. At the time you were living in Chelsea with CT and her son, JT, who was born on 2 February 1991 from a previous relationship.
4 During this period of your life you were employed as a security guard with different companies and you had a crowd controller's licence and an extendable steel baton.
5 With respect to Count 1 of common assault, JT gave evidence that one evening when his mother was ten-pin bowling he had a conversation with you about not eating his tea. When he told you that he could not eat any more you told him to go to bed and whacked him around the calves with your baton.
6 With respect to Count 6 of incest, the complainant gave evidence that when he was in the toilet upstairs you came up behind him, you told him to stay still and you inserted your baton into his anus. The complainant described the baton going into his anus as being cold and hard. He said he just stood there in shock and cried. It went on for a minute or two and he thought "Why is this happening to me?" After the event he wiped his bottom because he felt blood dripping down. The complainant then went back to his bedroom and lay on the bed because his bottom was sore.
7 With respect to Count 7, the threat to kill, the complainant's evidence was that when he was in the toilet after the incident you said to him "If you ever tell your mum I will fucking kill you." The complainant said that because he was young he took your threat very seriously.
Victim Impact Statements
8 It is apparent from the Victim Impact Statements from JT and his mother that your offending has had a profound effect on him. In his Victim Impact Statement JT said that he had been "really emotional about a lot of things", and the court case had affected his life dramatically. At worst it made him suicidal at times. He had been diagnosed with depression when he was 16 and had been emotionally unstable throughout his teenage years. He was always moody and yelled at his mother.
9 As JT's mother read her Victim Impact Statement to the court I will not repeat it all here. Save to say that she described her son as having been a happy and contented child prior to the abuse. Ever since the abuse he has been moody or was moody, either crying or angry, he suffered from depression and panic attacks, and he did not sleep at night and had nightmares.
10 These symptoms JT suffers from are typical of those experienced by the victims of child abuse. Childhood sexual abuse has a life-long effect on victims, and psychological and self-esteem problems are common.
Personal circumstances
11 Your counsel outlined your personal circumstances to the court and further details were contained in a psychological report from Jeffrey Cummins dated 1 November 2012. You were born in Alice Springs on 14 March 1973 and you are 39 years of age. Your parents separated when you were very young and you lived with your father and step-mother until you were age 15. You were not aware that your step-mother was not your biological mother until aged 11. You were then introduced to your biological mother and spent school holidays with her.
12 Although you were never the victim of any sexual abuse from your father, it was apparent from both your record of interview and Jeffrey Cummins' report that your relationship with him was problematic. Your father was an abusive disciplinarian and in your record of interview you said that you were hit with power cords, belts and wooden spoons when you were growing up. You left home at 15 and then lived with your aunt, completing your schooling in Year 11.
13 It is to your credit that you have a stable work record. You worked in the security industry until you suffered an injury when you were head-butted at a nightclub aged 29. You then worked in the roof truss and framing industry until 2004, subsequent to which you worked as a truck driver through until early January 2012.
14 You are married and from November 2011 you and your wife, MP, and her two children from a previous marriage, VP, who is 17 and in Year 11, and NP, who is 15 and in Year 8, have been living at your wife's parents' property in Carrum Downs. Both you and your wife are paid carers to her parents, her father having suffered a series of heart attacks and her mother having multiple health issues. You also have a ten-year-old son, BO, from a previous relationship, and you have contact with BO every alternative weekend and each Tuesday evening.
Psychological report
15
In his report Mr Jeffrey Cummins said that you were clearly struggling in a psychological sense to come to terms with the jury verdict. In his opinion you were still in a state of shock concerning this verdict. You told Mr Cummins that you did not know how you could cope with serving a gaol sentence.
Mr Cummins assessed your risk of sexual offending as low. In his opinion you are at risk of developing an adjustment disorder with mixed anxiety and depressed mood in response to the jury verdict, and with the inevitable incarceration reflecting that verdict.
Character references and medical reports
16 Your counsel tendered a number of written references on your behalf. In addition there were two reports from Beach Street Medical Centre dated 4 September 2012 and 1 November 2012, and also a letter from a hernia specialist dated 8 October 2012.
17 It is apparent from these references that your referees were well aware of the charges you had been found guilty of, but that they still thought highly of you. The general impression gained from these references is that you are now living in a close family unit, you are a considerate and loving father, step-father, husband and son-in-law. For example, in her reference JO, the mother of your son BO, could not reconcile the AJP she knew with the one she heard about in the courtroom who had been found guilty. She described you as being a good father to BO and to her two children, SO and TO, taking them on hikes and camping trips, and teaching them about cars.
18 As well as providing written references, EB, the chaplain for the trucking company, and your wife, MP, were called to give evidence. In her evidence Ms Davidson described providing pastoral support to you and your family over the last 15 months. She referred to the positive relationship you have with your family and described you as a committed family man who supported his wife in the care of her two frail parents. Your wife described you as a loving husband and good father-figure for her children. She spoke about depending on you to assist with the care of her frail parents and to do the heavy tasks, such as lifting wheelchairs into the car. She described your offences as being out of character and said that in her time with you she had never seen you violent or acting inappropriately towards anyone, including children.
19 It was apparent from the medical reports that were tendered that you have a number of health problems, in particular, obstructive sleep apnoea, acute tonsillitis, back pain, anxiety and depression, Factor V Leiden abnormality, for which you have to take a stocking and take anticoagulants, and you possible have a hernia, or alternatively, chronic pain syndrome.
Prosecution sentencing submissions
20 The prosecutor provided the court with a sentencing range of six to seven years, with a non-parole period of four to five years. Aggravating features of your offending were submitted to be that there was a gross breach of trust, there was a significant age difference between you and the complainant, that Count 6 of incest involved the use of a baton, and that there was a threat to kill.
Defence sentencing submissions
21 Your counsel submitted that this sentencing range was too high, and submitted that the appropriate sentencing range was three years and six months to four years and six months, with a non-parole period of two to three years. In summary, her submissions regarding sentence on your behalf included that the court must take into account that the jury had found you guilty of an isolated act of incest; as the threat to kill was part of the same incident there should be no cumulation; that there was no lasting physical injury to JT, although this did not detract from the fact that there was a psychological injury; that from Mr Cummins' report I can conclude that there was a low risk of re-offending; that although Mr Cummins did not conclude that there was a link between your father's treatment of you and your behaviour, I could conclude that the absence of a positive role model had led you to have less control; that the material and references provided to the court supported the case that you were otherwise of good character; that there was a delay in your cases as the offences had been committed between 1997 and 1999, they were disclosed in 2007, you were interviewed by the police in September 2009, however you were not charged until 2011; that you were aware that your important would cause your family hardship; that your own health would make your time in custody more onerous.
22 The Sentencing Snapshot for 2006 to 2007 provides that the median sentence for incest is seven years, with a non-parole period of four years and four months. However, your counsel submitted that in all the circumstances of this case the total effective sentence should be well below the median. This was because the court should take into account that most of the cases which came before the court where an accused was charged with incest involved representative or multiple counts. A number of decisions were provided to the court, including DPP v DJ [2011] VSCA 250, R v TC [2011] VSCA 190, R v RBN [2011] VSCA 261, King v R [2011] VSCA 423.
23 In particular your counsel relied on this last mentioned decision as providing an example where an offender had been re-sentenced to four years' imprisonment, with a non-parole of two years and nine months on one count of incest.
Sentencing remarks
24 In sentencing you I have taken into account all the submissions of your counsel. The jury found you guilty of one charge of incest, one charge of assault and one charge of threat to kill, and I must sentence you accordingly. In sentencing you I accept that your prospects of rehabilitation are good and that you present a low risk of re-offending.
25 Although you have shown no remorse and deny committing the offences against JT, your experiences at the hands of your own father may offer some explanation for your behaviour back in the mid-1990s. Indeed, I suspect that deep down you may have some understanding of what JT is going through, and hopefully in time you may show some remorse for what happened.
26 I accept that your physical ailments, including tonsillitis, back pain, anxiety, depression, Factor V Leiden abnormality, obstructive sleep apnoea, et cetera, will make your time in custody more burdensome than for those who do not suffer with such problems, and I have taken this into account in sentencing you.
27 I also accept that you will suffer while in custody from the knowledge that your family, in particular your wife, will find it difficult to cope without you. In addition, I accept that there has been a delay in your case. In sentencing you I have taken into account the two aspects of delay, firstly, that you have the stress of the charges and case hanging over your heard since you were interviewed by the police and, secondly, that there has been a significant rehabilitation on your part since the commission of the offences.
28
In arriving at my sentence I have always taken into account that the median sentence for incest no doubt reflects the fact that most cases have involved multiple counts and representative counts. However, I must also take into account the importance of general deterrence and the need for children to be protected from behaviour such as yours. In cases such as this it is clear that a sentence of imprisonment is the only appropriate sentence. It is obvious that your behaviour had a devastating effect upon JT, and your sentence must reflect the community's abhorrence for such acts. You abused your
de facto parental authority and subjected a young boy to acts of cruelty.
29 Taking all the various sentencing considerations into account, including the circumstances of this case, and exercising the sentencing synthesis required of me, I sentence you as follows. Would you please stand up?
Sentence
30 On Count 1 of common assault you are sentenced to one month's imprisonment; on Count 6, of incest you are sentenced to four years' imprisonment; on Count 7 of threat to kill you are sentenced to one year. I cumulate three months of the threat to kill, Count 7, on the base sentence of four years on Count 6 of incest. This results in a head sentence of four years and three months. I fix a non-parole period of two years and nine months. You may be seated.
31 MS THOMAS: If Your Honour pleases.
32 MS MAHADY: As Your Honour pleases.
33 HER HONOUR: I should say that I have cumulated some of the sentence on threat to kill on the count of incest, although while I accepted they happened at the same time, the act of incest constituted a physical violation of the victim; the threat to kill was an emotional one, causing JT to fear for his life if he told his mother what happened.
34 Also, I want to say that Count 6 is a Class 1 registered offence. Pursuant to the Sex Offenders Registration Act you are now a registered sexual offender and conditions to report apply for 15 years. My associate is bound to hand you a copy of the regulations in relation to the Sex Offenders Registration Act. I will get her to do that now, and you must sign those.
35 The 464ZF application was consented to?
36 MS THOMAS: It's not opposed, Your Honour.
37 HER HONOUR: Yes, in that case I will make that order on the grounds it is in the public interests and that it is consented to.
38 MS THOMAS: It would be a saliva sample rather than a blood test.
39 HER HONOUR: Yes. I am bound to tell you that if you were to try and prevent the police from taking that sample they can use all necessary force against you. But I am sure that will not be a problem.
40 Yes, I would ask that the prisoner please be removed. I will adjourn the court.
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