Director of Public Prosecutions v Anders (a pseudonym)
[2023] VCC 1691
•15 September 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication | |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TRAVIS ANDERS (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE SMALLWOOD |
WHERE HELD: | Melbourne |
DATE OF HEARING: | |
DATE OF SENTENCE: | 15 September 2023 |
CASE MAY BE CITED AS: | DPP v Anders (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1691 |
REASONS FOR SENTENCE
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Cases Cited:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr R. Pirrie | |
For the Accused | Dr J. Murphy |
HIS HONOUR:
1Travis Anders,[1] on 18 July of this year you were convicted by a jury of
12 people at Warrnambool of three charges of sexual assault of a child under the age of 16, and one charge of sexual activity in the presence of a child under the age of 16. The child in question during the time of this offending was aged between five and six.[1] A pseudonym.
2You are now 31 years of age as I understand it. In these circumstances you do not have the benefit of a plea of guilty, which is often a very mitigatory factor in these matters. There is clearly no remorse and clearly no insight into the nature of your offending. Indeed, your defence was that the mother had in fact put the child up to making up these allegations against you. Those factors in no way aggravate the circumstances of the offending but they certainly take out of the equation any aspects of mitigation. In that regard each of the charges carries a maximum penalty of 10 years' imprisonment. Certainly Charges 2 to 4 are standard sentence and Charge 1 may not be but, in any event, in my view, in this situation it makes no difference. The standard sentence in relation to each of the charges is four years.
3Insofar as sentencing for a standard sentence is concerned, I point out that
I am aware of the authority of The Queen v Brown, a quote from the Court of Appeal in McPherson v The Queen:'The standard sentence is designed to represent a ‘mid-range’ example of this offence, however, the offence covers such a wide range of sexual misconduct as to make the notional ‘mid-range’ very difficult to identify. The misconduct can be penetration by finger, penis or tongue, or by an object. It can be momentary or protracted. It can be committed on all ages up to 12. The impact on the victim can be manageable or catastrophic. This is not to say the phrase is meaningless - it must be given its place in the sentencing calculus - but it is an intangible concept, and judges ought to be wary of affording it too much weight in the sentencing exercise. In particular, as this Court has said, judges must avoid engaging in ‘two-stage’ sentencing, whereby a vague, essentially intangible concept is used as a starting point from whence the sentence is adjusted upwards or downwards as the case dictates. It is a factor in the application of the intuitive synthesis' -
or instinctive synthesis I prefer to call it,
- 'in the same way that the maximum sentence is. No more, no less'.
4I say that I have taken the standard sentence into account as one of the factors to consider in respect of certainly Charges 2 to 4 and insofar as my instinctive synthesis is concerned my consideration of the standard sentences is one of those factors reflected in the sentence I impose. The sentence I impose in respect of Charge 3 is higher than the standard sentence. Having identified and considered the relevant factors in assessing the sentence, including the standard sentence, the objective seriousness of the offending and the matters available in mitigation of the term and to the sentences I impose are the ones that are appropriate. As it became clear, the offending here is of a very serious nature particularly, in my view, in regard to Charge 3.
5You have no prior convictions, which is of assistance to you. Because of the offending you will be placed on the sex offenders register and I advise that the reporting conditions will be for life. On Charges 3 and 4 because of the sentences that I am now imposing, on Charges 1 and 2, you are to be sentenced as a serious sexual offender. I am aware that cumulation is required unless otherwise ordered. I will be so otherwise ordering for reasons of totality. I am also aware that community protection becomes the principal sentencing purpose and I take that into account. The Crown do not ask for disproportionate sentence and I would not have given one in any event.
6A summary of the offending indicates clearly just how serious it is. You were the brother of the mother of Elsie Northage.[2] On a number of occasions in 2018 and 2019 when she was aged between five and six years old you had her masturbate and lick your penis to ejaculation and at least on one occasion in the presence of her sister, Bella.[3] On another occasion she was present and watched Bella masturbate and lick you.
[2] A pseudonym.
[3] A pseudonym.
7The background is that - and I will not have to go through that in any great
detail - the circumstances were that you would visit your sister, Marie,[4] and stay overnight at the address a few times. The people are now unable to recall exactly how often that was or when it was, but it appears that on one occasion at least you babysat your nieces.[4] A pseudonym.
8In March 2020 the family moved to Warrnambool. I will not go through the various addresses where people lived during that time but in Warrnambool the victim states on a number of occasions you would have her masturbate and lick your penis to ejaculation. She recalls two specific occasions and as I have said, another one of watching her sister doing the same thing. On an occasion when she was living in Warrnambool you were visiting the house, she was in the living room, watching television. You were sitting on a chair in the living room and she, which just indicates the sheer innocence of the child, said, 'Can we do the vanilla thing again?' You said, 'Let's do it'. Clearly that had occurred on more than one occasion prior to that. She then used her hand to masturbate you until ejaculation. That is Charge 1.
9On another occasion when the victim was living in Colac you stayed overnight in the spare room. She woke you in the morning and you asked her, 'Would you like some vanilla?', and she said, 'Yes'. You then rolled down your pants and underwear to expose your penis and the pair of you were both in the spare bed in the spare room. She masturbated your penis, which she called a noodle or a doodle, and said she squeezed, rubbed, jiggled, stretched and peeled it. That gives rise to Charge 2 of sexual assault of a child under the age of 16. That is the masturbation.
10As part of the same incident, you then told her to lick the lollipop, being your penis. She said 'No'. You then showed her a video clip on your phone of apparently a woman fellating a man and that is its context, and I point out clearly that a lot of this material is context only. She, having seen that then licked your penis to ejaculation. She said that the, 'vanilla came out', 'from the hole in your doodle'. The semen sprayed on her face. Some went into her mouth and she said it was, 'terribly gross', and like, 'eating rotten eggs'. That is Charge 3, sexual assault of a child under the age of 16.
11I do not think I need to go into any detail of just the sheer horror of an offence such as that nature. To do that, to ejaculate into the face of a totally innocent little six year old is just utterly disgraceful and words fail me in terms of taking that any further.
12On another occasion, this is for Charge 4, the victim and her sister in the room together, and she watched as her sister masturbated you and licked your penis. I have got to be careful there that I am only dealing with one victim in this matter but the fact is it is her sister that she is watching do this in terms of the sexual activity in the presence of a child charge makes it a more serious example and I will say no more than that.
13On 24 April 2021 the victim was to sleep overnight at the home of her grandmother and they were getting dressed. I have seen this video. It is a very powerful document, I suppose you would call it, and the complainant told her grandmother that she knows all about doodles and they stick out like a bone. She said to her grandmother, 'Uncle Travis has got a lollipop and I have to lick it'. She demonstrated masturbation with her hands and said, 'Then the vanilla comes out'. I have watched that video and the demonstrations that the child gave. To suggest in any way, shape or form that the child is making that up or was in some way, shape or form taught how to make up words like, 'peeled it', and, 'vanilla coming out of a hole in his doodle', is absolutely ludicrous. Whether you have deluded yourself into the situation where you have been able to somehow expunge it from your mind, I do not know but I have grave doubts. This is just a preposterous defence.
14In any event, her grandmother has pointed out at the start of her plea then with extraordinary courage and self-possession, took out her phone and in a perfectly proper way asked the victim to explain what had happened and
pre-recorded that disclosure. It must have been a dreadful experience for her. She then went to the police station to report the matter and matters proceeded from there.15As I said, you chose to go to trial. Special hearings were conducted. The mother of the child essentially had to have it put to her by counsel that she had somehow or other played a part in planning the seed of all this or whatever it is and as I said, and it does not aggravate the situation. No remorse or insight at all. It is clearly, in my view, very serious offending.
It calls for the application of general and specific deterrence, denunciation and appropriate punishment.16As Marks J said many years ago:
'A society which fails to protect its children from sexual abuse by adults is degenerate'.
17That certainly applies to this. This is not a situation of an older man with a
14 year old or a 15 year old. This is a very small, very innocent child that you have preyed upon for your own perverted reasons.18I have had read out and read the victim impact statement of the grandmother. Those victim impact statements clearly and eloquently express the natural but totally wrong sense of guilt that each of the parents feel. That is always the case in these circumstances from what I can see. The psychological damage that is done to whole extended families, the presumption of damage to the children and in this case obviously the sisters involved, though I do not sentence as her being a victim.
19Often irreparable damage is caused by this sort of offending. Often it can be ameliorated by simply pleading guilty. As is pointed out in the victim impact statement of the mother, she could not believe it when you decided to run this as a trial and again, you get none of the benefit of any of those mitigatory matters. This sort of offending extends far beyond some isolated bedroom with a little child. You can destroy and damage people for years to come. Hopefully people can get over it but that is highly problematic. The only sentencing option here is a significant custodial sentence, bearing in mind totality, as I think I have already indicated, with a minimum term.
20I then look to matters personal to you. I thank your counsel for helpful submissions in that regard. It is a situation where going through backgrounds and the like is not of great assistance. I am prepared to accept that in your earlier years, as you have outlined apparently to Ms Kojic, the psychologist, your family life was very difficult. You were beaten and there was physical violence between your parents. You were ultimately able to obtain a Year 9 secondary education. I have already pointed out, you have no prior convictions. You went ahead with a TAFE course, did computer systems. You were able to obtain casual employment at the age of 18 in a meat processing factory. You worked there for a while, then worked for a laundry company and you were then driving trucks for FedEx which, as I understand it, was occurring around about the time that all this took place. A number of incidents had taken place in your life, which I dare say have had a significant impact upon you and I take those into account.
21However, insofar as principles of Bugmy are concerned, and whilst I have indicated with your counsel, obviously I will take them into account in these circumstances, it's drawing a pretty long bow to say that your background causes you to ejaculate into the face of a six year old, but be that as it may,
I give those matters what weight they deserve. So far as your psychological state is concerned I accept that you have a depressive disorder. I accept that that will make incarceration harder for you than a person who has not, and I accept also that may well worsen in prison and that enlivens the Limbs 5 and 6 of Verdins.22There is no suggestion here that you are intellectually impaired or anything along those lines. You have a pretty good work record. Certainly, from when you were in your early 20s you do, it would appear, have the support of your parents. I have before me letters of support from your parents, which basically outline your background. There does not seem to be too much mention there of the violence and the like that you refer to in your psychological report, but be that as it may, I also just simply note in passing that those references pay no heed to the victims who are obviously the grandchildren of those parents, but I will leave that where it sits in the background of all this.
23The psychological assessment that was made is a mixed bag as far as you are concerned. I accept for these purposes, as I have indicated, that you are predisposed to a major depressive disorder because of your background. The identifiable factors predisposing you to this sort of offending are significant.
I am not going to outline them here and anybody with a proper reason can read what you had to say to that psychologist in that interview about your sexual experiences. I certainly do not hold it against you but there are aspects that I find extremely difficult to believe. Whether it is fantasy or what it is I have no idea. The end result is that the psychologist is really unable to give rise to any psychological reason for this offending. So far as rehabilitation is concerned,
I accept what your counsel says, that I am not in a position to know what is going to happen in the future. I will certainly be giving you a non-parole period but it will ultimately be a matter for the Parole Board when your minimum term expires as to what they propose to do with it.24The risk of you reoffending in a general sense is low. There is no material before me about the risk of reoffending in a sexual sense but I just say the background, which I have some suspicions about you have given of a sexual experience, do not fill one with confidence, if I can say it that way. The ridiculous line that you prefer women as - and one of the lines that you have said to the psychologist was that you had a range of casual sexual relationships with older women, noting, 'the older the better', that you know exactly what you were doing and you are just trying to distance yourself from the age of those little kids. This is nothing to do with a misguided love affair or anything like that. It is just offending in its grossest form.
25I have indicated I have taken very much into account totality. One is always endeavouring to avoid a crushing sentence. I have taken into account all the matters that are raised, that you apparently will have support upon your ultimate release. You will be young enough to continue working. You apparently worked in the past and were working at the time of all this. Whether you ultimately own up to all this and get the benefit of parole or whether you continue to deny it and are therefore denied that benefit of parole is entirely a matter for you and is entirely out of my hands.
26So I take all those matters into account and in the end, as no one is disagreeing with the prospect that a custodial sentence of significant proportions is the only option available here.
27Accordingly, taking all those matters into account,
(a) on Charge 1, four years;
(b) on Charge 2, four years;
(c) on Charge 3, which I will say is a very serious example, six years,
(d) on Charge 4, four years.
28The sentence imposed on Charge 2 will be served concurrently with the sentence imposed on Charge 3 as they come from the one and the same incident. I have been careful with Charge 4 not to become emotive about it, but in the end, I have decided that one year of the sentence imposed on Charge 1 and one year of the sentence imposed on Charge 4 be served cumulatively upon each other and upon the sentence imposed on Charge 3.
29That gives a total effective sentence of eight years. I direct that you serve a minimum term of five and a half years before becoming eligible for parole.
I direct that 60 days be reckoned as having been served under this sentence
I do not think there is any other orders I have to make, are there?30DR MURPHY: No, Your Honour.
31HIS HONOUR: No other orders, Mr Pirrie?
32MR PIRRIE: No, Your Honour.
33HIS HONOUR: All right. Thanks, gentlemen.
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