Director of Public Prosecutions v Alec (a pseudonym)
[2022] VCC 569
•27 April 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL JURISDICTION | Revised Un-Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RAMSAY ALEC (a Pseudonym)[1] |
[1] To ensure that there is no possibility of identification of victims of sexual offending, this judgment has been anonymised by the adoption of pseudonyms.
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| JUDGE: | HIS HONOUR JUDGE DOYLE |
| WHERE HELD: | MELBOURNE |
| DATE OF TRIAL: | 1, 2, 3, 4, 7, 8, 9, 10 March 2022 |
| DATE OF PLEA: | 20 April 2022 |
| DATE OF SENTENCE: | 27 April 2022 |
| CASE MAY BE CITED AS: | DPP v ALEC (A PSEUDONYM) |
| MEDIUM NEUTRAL CITATION: | [2021] VCC 569 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Guilty by jury verdict - six charges of indecent act with a child under the age of 16 – eight charges of incest
Legislation Cited: Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences and Other Matters) Act 2014 s 47(1), s 44(1); Sentencing Act1991 s 6E, s 18; Sex Offenders Registration Act 2004
Sentence:Convicted and sentenced to 14 years imprisonment with a minimum of 9 years and 9 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | J. Piggott | Solicitor for the Office of Public Prosecutions |
| For the Accused | B. Franjic | Tony Hargreaves and Partners |
HIS HONOUR:
1Ramsay Alec[2] on 15 March 2022 following an eight-day trial you were found guilty by jury verdict of six charges of indecent act with a child under the age of 16 and eight charges of incest arising from six separate incidents.
[2] A pseudonym
Background
2The victim in this matter is Christopher Clinton[3], who was born in June 2006. He was aged 10 at the time of the offences. You married his mother Florence[4] in May 2010 in the Philippines. She and her son Christopher moved to Australia to live with you in March 2011. You lived together at an address in Melbourne.
[3] A pseudonym
[4] A pseudonym
3You share two biological children with Florence Clinton: Malcolm Alec[5] born in June 2011, and Carol Alec[6] born in July 2012. You also have two children from an earlier marriage: Russell Alec[7] born in December 2003, and Stewart Alec[8] born
in January 2006. At the time of the offending, you were employed as a remote vehicle operator on a rotation of four weeks away from home and then four weeks back at home when you were not working.[5] A pseudonym
[6] A pseudonym
[7] A pseudonym
[8] A pseudonym
4The house you lived in had three levels. The lowest level was a storage and workshop area. There were four bedrooms, two were on the second level as were the kitchen living room. Russel and Stewart shared a bedroom; Christopher and Malcolm shared another bedroom. At the back of the property was a chook shed and another shed as well. Carol’s bedroom and the parental bedroom were on the third floor of the property.
5The offending in this case took place over a period of approximately six to eight months in 2016. The evidence was it occurred both before and after a family camping trip up the east coast of Australia which took place between the middle of August and the middle of
October 2016.
The offences
6Christopher Clinton made a complaint to his mother about this offending on 28 September 2019. As a result of that complaint Florence Clinton involved police and Christopher Clinton made a VARE on 30 September 2019.
7In that VARE Christopher Clinton described the circumstances of the offences of which you were convicted by the jury. In accordance with the jury verdicts, I sentence you based on that evidence which I will briefly summarise.
Charges 1 and 2
8The first incident took place sometime in 2016 before the camping trip occurred when Christopher went to feed the chooks in the garden. On the evidence this was one of the chores that fell to him in the family. The victim in his evidence said this happened a few months before the camping trip.
9You were in the workshop. You asked the victim to come into the workshop and you had him kneel down in front of you. He agreed to do this because he was frightened you would hit him if he did not. You then unzipped your pants. You held his wrist and made him stroke your penis until it became hard. You held his head and put it closer to your penis. You told him to open his mouth and you inserted your penis into his mouth. You pushed his head closer until he was unable to breath. You did this until you ejaculated. The victim swallowed your ejaculate. Afterwards you told him to finish feeding the chooks. The victim said he rinsed his mouth out with the hose that was outside. He said that when this incident took place his mother was not at home; she was out attending hot yoga. The two charges here; Charge 1, the act of masturbating your penis and Charge 2, the oral penetration, took place for all intents and purposes at the same time or very, very closely related in time.
Charges 3 and 4
10Turning to Charges 3 and 4. The circumstances of the second incident are similar to the first incident. Florence Clinton was making dinner in the kitchen. She asked Christopher to feed the chooks. You told him to come into the workshop. He walked in and you were unzipping your pants. Again, you forced him to masturbate your penis by grabbing his hand and you put your penis into his mouth. You told him to keep going. You ejaculated in his mouth. Afterwards he washed his mouth out in the bathroom sink. Charge 3 is the act of having him masturbate your penis and Charge 4 is the oral penetration.
Charges 5 and 6
11The third incident also took place again when Christopher went to feed the chooks. Malcolm and Carol were playing inside. You called him into the shed. He knelt in front of you. He masturbated your penis and you put your penis in his mouth. Afterwards again he washed his mouth out, this time in the bathroom sink inside the house.
Charges 7 and 8
12On this occasion Christopher was lying on his top bunk in his bedroom at home at night, trying to go to sleep. It was late at night. Malcolm was in the bottom bunk, asleep. The room was dark but apparently with some light coming in. You came into the room and climbed the ladder. You unzipped your pants. You had one hand on the bed railing, and you used the other hand to hold his head. He was lying on his side facing the ladder. You pushed his head towards you and put your penis in his mouth. He felt your pubic hair against his lips. At the same time, you grabbed his hand and had him masturbate you. Charge 7 is the oral penetration. Charge 8 is the masturbation. Again, you ejaculated into his mouth.
Charges 11, 12 and 13
13This incident took place when Florence Clinton was again at hot yoga. No one was at home apart from you and Christopher. He went into his brother Malcolm's bedroom to put away some toys. You came into the room holding a small face towel. You told him to kneel. He did this. You unzipped your pants and forced him to masturbate your penis and you penetrated his mouth with your penis. You then told him to turn around. You pushed him down so that he was on his hands and knees on the floor in a crouching position. You rubbed lubricant onto your penis and penetrated his anus. The victim said the lubricant smelt sweet and fruity and was sticky. You moved your penis back and forth slowly. This penetration caused him pain. You told him to relax, and you continued until you withdrew your penis and ejaculated onto the skin of his bottom. You then wiped his bottom with a towel. Afterwards he needed to defecate, and he went to the toilet. His anus was stinging from the penetration you had perpetrated against him. Charge 11 is the masturbation. Charge 12 is the oral penetration. Charge 13 is the anal penetration.
Charges 17, 18 and 19
14Turning to the final incident which covers Charges 17, 18 and 19. After the camping trip but before the end of the year, the victim again went to feed the chooks. You told him to come into the workshop. You used your hand to have him masturbate your penis and you put your penis in his mouth. Those two incidents are Charges 17 and 18. After that you made him lie down on a white stool. You positioned him on his stomach and rubbed the lubricant on your penis. You obtained this lubricant from a cupboard in the workshop. Again, the lubricant was sweet smelling. You penetrated his anus with your penis and then ejaculated on the skin of his bottom. This is Charge 19. After you had penetrated him, he told you it hurt but you told him to relax and continued. At the end of this incident, you used a rag from the shed to wipe the semen from his bottom. Later on, he rinsed his mouth out upstairs.
15That is a brief summary of the events giving rise to the charges in this case. As I said, it arises over incidents in 2016 which, and based on the indictment, occurred within a time frame of around six to eight months. It seems to me six months is closer to the likely time frame on all the evidence.
Victim impact statement
16Turning to victim impact in this matter. I have had regard to the victim impact statement of Florence Clinton. Christopher did not make a victim impact statement but the prohibition on sexual activity with a child presumes that sexual activity which occurs before a child reaches an age at which they can give meaningful consent causes psychological harm likely to be serious and enduring.
17Having regard to the gravity of the acts in this case it seems to me the presumption is well founded. Also, in relation to the impact on Florence Clinton this was a grave breach not only of Christopher’s trust but hers as well and I take into account the impact on her.
Gravity
18This offending was objectively very serious; this is obvious. The crime of incest carries a maximum penalty of 25 years reflecting just how serious it is. It is regarded rightly by the community as abhorrent. Inherent in such offending is a fundamental breach of trust and responsibility. As I said dealing with victim impact, you gravely breached the trust of both your stepson Christopher and your wife Florence.
19On the evidence here you treated the victim differently to your biological children. He was required seemingly to perform most of the household chores, and he was subjected to a level of physical discipline that played a part in his acquiescence to your demands. Against that background you preyed on him for your sexual gratification. Given the power imbalance; his age (just 10 years old); and the position he occupied in the family, he had no way to resist and no choice but to comply with your sexual demands. You did indeed take advantage of the power imbalance between you and the victim and the age difference to commit these offences.
20The acts themselves are very serious. You made him masturbate your penis whilst penetrating his mouth and ejaculating in his mouth; you penetrated his anus and then ejaculated on him. The anal penetration charges caused him pain as described in the VARE.
21Your conduct was frequent during the offending period in 2016 and involved multiple acts of penetration. That said, the somewhat unusual aspect of this case is that the offending was confined to a time frame of around six to eight months and then it just stopped. As submitted by Ms Franjic, sentences in the upper range for incest often take place over years and involve multiple victims. Without seeking to downgrade at all how serious this offending is I accept that submission. Also absent are some of the more extreme features of aggravation sometimes present in these types of cases.
22As outlined in the defence submissions incest is an offence of high culpability. Your history and personal circumstances indicate that you are an intelligent person and with respect to your biological children, the indications are that you have been a good and responsible parent; yet you used your stepson, aged just 10, for the purposes of your sexual gratification.
23In the circumstances I assess your moral culpability for these very serious offences of which the jury has found you guilty as substantial.
24You maintained a plea of not guilty. You are not to be punished for that but your counsel, Ms Franjic, could not point to remorse and insight in mitigation of your offending.
25You will be sentenced as a serious sexual offender after the imposition of sentences of imprisonment on Charges 1 and 2 and your status as a serious sexual offender will be noted in the court records. The significance of the serious sexual offender provisions are as follows: protection of the community becomes a principal sentencing factor; and the totality principle is modified by section 6E of the Sentencing Act in that sentences are to be cumulative unless otherwise ordered. I also have the power to impose a disproportionate sentence but in this case the prosecution accepted that a disproportionate sentence is not required, and it is my view that there is clearly sufficient sentencing scope for you to be sentenced on ordinary principles and proportionality remains a significant matter.
Personal circumstances
26Turning to your personal circumstances which I must have regard to in sentencing you. You are now 52 years old. You were born in July 1969. You were adopted when you were just a few weeks old. You are the youngest of five children in the family. Your oldest sibling gave character evidence on the trial and provided a reference on your behalf. You have two sisters and another brother. You describe your childhood as warm, happy and stable. Your father died in 2007. Your mother is now 84 years old and lives in Lilydale. You have a good relationship with her. Before you were remanded in custody after the trial, you visited her regularly at home and performed maintenance at her property. You attended primary school in Ringwood and then you went to a Grammar School at the beginning of Grade 6. You stayed there until the end of Year 10. After school you completed a trade apprenticeship in electrical fitting. Additionally, you have also undertaken commercial diver training in the United Kingdom and other training in relation to diving in Australia. Ms Franjic, in her submissions, listed various other courses that you have successfully completed over the years.
27You have been consistently employed since you left secondary school. You are a skilled and respected sub-sea specialist. Your employment history is solid. You worked as an electrical fitter between 1987 and 1992. Between 1993 and 2005 you worked as a commercial diver around the world. For a period you also worked as a self-employed carpenter. You did this when you were not working as a diver offshore. Between 2005 and 2022 you have worked with Remote Operated Vehicles in various roles. You have also had employment with Origin Energy in Bass Strait. Much of your work has taken you away from Victoria. That was the subject of evidence in the trial. You were due to commence a new position in April of this year as an offshore construction manager with a company in Thailand.
28You have been married twice. Your first wife was from Norway. You were married in Norway in 1992. You and your wife moved to Melbourne in 1996. You have two sons from that marriage: Russel and Stewart, who are now aged 18 and 16. That marriage ended in 2009 but you have maintained a positive relationship with your first wife and have managed to cooperatively parent Russel and Stewart.
29You met your second wife Florence, Christopher’s mother, in 2009. You and Florence were married in May 2010 with whom you have two biological children, Malcolm and Carol as I mentioned earlier.
30You have a strong relationship with your older sons, Russel and Stewart, and they have always lived with you when you have been in Melbourne, not away working. They now live at your house.
31I am told you have had no physical contact with your younger children, Malcolm and Carol, since the allegations were made by Christopher. The Department of Health and Human Services became involved at that stage. I accept that this has a been a matter of significant anguish to you.
32Prior to your remand you had telephone contact with them. You were supporting them financially until you were remanded in custody. I am told you have formed a new relationship with a woman who lives in Indonesia. You have been engaged to her since 2019. She remains supportive of you.
33You have no psychological or psychiatric conditions. I am told and I accept that you have no issues with substance abuse.
34You have led an active outdoor lifestyle and you have been involved with Surf Lifesaving and Scouts as a volunteer.
Prospects of rehabilitation & specific deterrence
35I have received letters of support from your sister, your son Russel, and your brother who also gave character evidence at the trial. They speak of your good character, your capacity for hard work, your honesty, stability and a range of other positive qualities I have taken into account.
36Ms Franjic emphasised the absence of prior convictions and the good character evidence; your impressive employment history; and your stable family life, apart from this offending, which she characterised as difficult to comprehend. I agree with that.
37Ms Piggott submitted that because you deny the offending and have shown no remorse or insight it is difficult to make any assessment of your prospects of rehabilitation.
38I think in the end this is correct and while some of the circumstances do point to good prospects, I can only take a guarded view of your rehabilitative prospects given the absence of remorse and insight in light of the jury verdict.
39Specific deterrence does remain a principle of some importance to sentencing in these circumstances, but I take into account the absence of prior convictions and the positive character material in assessing your circumstances and in fixing the non-parole period in this case.
COVID-19
40In formulating sentence in this matter, I have considered the restrictive conditions in prison which prevail in response to the pandemic, including and in particular the absence of visits. That is a matter that will increase the burden of your imprisonment for at least some time into the future. You are a person who has never relevantly offended before let alone been in prison. The sentence I must impose will weigh heavily on you and this will be accentuated by the current restrictive conditions in prison.
Delay
41I have taken into account the delay in bringing the matter to trial. It is two and a half years since the matter was brought to police attention and I have taken into account the anxiety and stress involved in waiting for the outcome of these very serious charges. The three-year delay between the offences and the complaint seems to me to be not unusual at all in cases of this nature.
Totality
42Submissions were made as to the application of totality principle which requires that the overall sentence for your offences be just and proportionate to the totality of your offending. To achieve this and to avoid a crushing sentence a level of concurrency is required between the sentences for the individual charges. I also take into account that the offences here were part of a course of conduct over a discrete period of months and that some of the offences occurred really at the same time or very, very close to each other in time as part of a discrete incident. I am referring here to charges of the oral penetrations and the indecent acts involving masturbation. It seems to me on a fair reading of the evidence in the VARE that these offences were taking place almost simultaneously which is a factor that dictates significant concurrency. Furthermore, the incidents of anal penetration followed on soon after the charges of oral penetration and masturbation.
43That said the cumulation of these various incidents, one after the other must have provided a grotesque and unforgettable experience for Christopher.
44Also, as I said earlier, the totality principle is modified in this case by the fact that you are a serious sexual offender and that must be taken into account as well in fixing periods of concurrency and cumulation in these matters.
Principles
45In this matter considerations of general deterrence, that is the need to deter others who might be minded to offend in a similar way, denunciation by the court of these serious offences involving substantial breaches of trust and significantly serious sexual acts and just punishment, all assume considerable importance in this case.
46Also, for the offences after Charge 2 I am required to regard community protection as the principal purpose in sentencing.
47I must not lose sight though of your rehabilitation and the need to reintegrate you into the community when your sentence is concluded, and I have taken that into account in fixing the non-parole period in this matter.
Sentence
48Mr Alec, I am now going to proceed to the individual sentences in this matter after which I will indicate the periods of cumulation.
49Charge 1, you are convicted and sentenced to two years' imprisonment.
50Charge 2, you are convicted and sentenced to six years' imprisonment.
51Charge 3, you are convicted and sentenced to two years' imprisonment.
52Charge 4 of incest, you are convicted and sentenced to six years' imprisonment.
53Charge 5 of indecent act, you are convicted and sentenced to two years' imprisonment.
54Charge 6 of incest, you are convicted and sentenced to six years' imprisonment.
55Charge 7 of incest, you are convicted and sentenced to six years' imprisonment.
56Charge 8 of indecent act, you are convicted and sentenced to two years' imprisonment.
57Charge 11 of indecent act, you are convicted and sentenced to two years' imprisonment.
58Charge 12 of incest, you are convicted and sentenced to six years' imprisonment.
59Charge 13 of incest, you are convicted and sentenced to six years and six months' imprisonment or 78 months.
60Charge 17 of indecent act, you are convicted and sentenced to two years' imprisonment.
61Charge 18 of incest being the oral penetration, you are convicted and sentenced to
six years' imprisonment.62Charge 19 of incest being the anal penetration, you are convicted and sentenced to six years and six months' imprisonment.
63I make the following orders for cumulation:
| Charge | Charge Description | Sentence | Cumulation |
| First occasion | |||
| 1 | Indecent Act – Victim masturbated your penis in the workshop whilst his mother was at hot yoga. | 2 years | |
| 2 | Incest – Introduced penis into the victim’s mouth. | 6 years | 8 months |
| Second occasion | |||
| 3 | Indecent Act – Victim masturbated your penis in the workshop whilst victim’s mother was cooking dinner upstairs. | 2 years | 2 months |
| 4 | Incest – Introduced penis into the victim’s mouth. | 6 years | 12 months |
| Third occasion | |||
| 5 | Indecent Act – Victim masturbated your penis whilst his siblings watched television. | 2 years | 2 months |
| 6 | Incest – Introduced penis into the victim’s mouth. | 6 years | 12 months |
| Fourth occasion | |||
| 7 | Incest – Introduced penis into the victim’s mouth whilst the victim was on the top bunk bed late at night. | 6 years | 12 months |
| 8 | Indecent Act – Victim masturbated your penis. | 2 years | 2 months |
| Fifth occasion | |||
| 11 | Indecent Act – Victim masturbated your penis after putting toys away. | 2 years | 2 months |
| 12 | Incest – Introduced penis into the victim’s mouth. | 6 years | 12 months |
| 13 | Incest – Inserted penis into the victim’s anus. | 6 years 6 months (Base) | |
| Final occasion | |||
| 17 | Indecent Act – Victim masturbated your penis in the workshop after the camping trip. | 2 years | 2 months |
| 18 | Incest – Introduced penis into the victim’s mouth. | 6 years | 12 months |
| 19 | Incest – Introduced penis into the victim’s anus. | 6 years 6 months | 12 months |
| TES: 14 years NPP: 9 years 9 months PSD: 43 days | |||
64I will give you a bit of time but that should amount to 14 years.
65If you need anything repeated just let me know. Sorry Ms Franjic, I cannot hear you?
66MS FRANJIC: Your Honour, what was the cumulation on Charge 1?
67HIS HONOUR: No, that's concurrent.
68MS FRANJIC: Very well. Thank you.
69HIS HONOUR: He is not a serious sexual offender in relation to that. I have made the concurrent.
70MS FRANJIC: By my calculation, Your Honour, that's 14 years.
71HIS HONOUR: Yes. Well that is what I understood to be the case. It is quite complicated, Ms Piggott. Do you agree? You are on mute.
72MS PIGGOTT: On Charge 11 what was the cumulation?
73HIS HONOUR: Twelve. No sorry, two.
74MS PIGGOTT: Two years or two months?
75HIS HONOUR: Two months.
76MS PIGGOTT: Two months.
77HIS HONOUR: Wasn't Charge 11 indecent act?
78MS PIGGOTT: Yes, it was.
79HIS HONOUR: Two months - - -
80MS PIGGOTT: Yes. Thank you.
81HIS HONOUR: Yes.
82MS PIGGOTT: No. No, that's my calculation as well.
83HIS HONOUR: All right. I fix a minimum non-parole period of nine years and nine months in this matter.
84It will be noted in the court records that Mr Alec is to be sentenced as a serious sexual offender in relation to Charges 3 through 19.
85I make an order under the Sex Offenders Registration Act the registration period in this matter is life for the number of Class 1 offences involved.
86I think there was some sort of disposal order asked for in this case and I will make that order.
87MS PIGGOTT: That's correct, Your Honour and I calculate PSD at 43 days.
88HIS HONOUR: Forty three days.
89MS FRANJIC: That's agreed, Your Honour.
90HIS HONOUR: Yes. Pursuant to s 18 of the Sentencing Act I declare 43 days to be deducted administratively from the sentence that I have imposed in this matter.
91All right. Nothing further?
92MS PIGGOTT: No, thank you.
93HIS HONOUR: Before I go just I'll leave the line open for you, Ms Franjic.
94MS FRANJIC: I'd be grateful for that, Your Honour.
95HIS HONOUR: So I'll get off the link as will the others involved you can speak to Mr Alec. All right. I'll now stand down.
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