Director of Public Prosecutions v Arbogast (a pseudonym)
[2021] VCC 1132
•16 August 2021
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| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JEFFREY ARBOGAST (a pseudonym) |
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JUDGE: | Her Honour Judge Hassan | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 July 2021 | |
DATE OF SENTENCE: | 16 August 2021 | |
CASE MAY BE CITED AS: | DPP v Arbogast (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1132 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence — incest — indecent act with a child under 16 — trial — majority verdict — grandfather — grandparent — granddaughter — grandchild — victim impact statement — prior good character — breach of trust — moral culpability — no remorse — burden of imprisonment — prospects of rehabilitation — low risk of reoffending — serious sexual offender — protection of the community — cumulation — sex offender registration
Legislation Cited: Sentencing Act 1991 (Vic); Sex Offenders Registration Act 2004 (Vic)
Cases Cited:Cheung v The Queen (2001) 209 CLR 1; Reid v The Queen (2014) 42 VR 295; Director of Public Prosecutions (Vic) v Dalgliesh [2016] VSCA 148; R v Sposito (Supreme Court of Victoria, Marks, Hampel and McDonald JJ, 8 June 1993)
Sentence: Total effective sentence of 11.5 years’ imprisonment with non-parole period of eight years
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr N Batten | Solicitor for the Office of Public Prosecutions |
| For the Accused | Ms J Swiney | Victoria Legal Aid |
HER HONOUR:
1Jeffrey Arbogast,[1] you have been found guilty by a majority jury verdict of two charges of incest and six charges of indecent act with a child under the age of 16. The charges arose out of five incidents. The maximum penalty for the crime of incest is 25 years’ imprisonment. For the crime of indecent act with a child under 16, the maximum penalty is 10 years’ imprisonment.
[1] A pseudonym.
2You were acquitted, again by majority verdict, of one charge of indecent act with a child under 16.
3In sentencing you, I am bound by the principles in the case of Cheung v The Queen.[2] As such, I must interpret the facts in a way that is consistent with the jury verdict. Clearly, the jury rejected your denial of the offending and accepted beyond reasonable doubt the evidence given by your victim.
[2] (2001) 209 CLR 1.
Circumstances of Your Offending
4The victim, Amelia Arbogast,[3] is your granddaughter. She is the daughter of your daughter, Eleanor Arbogast.[4] She was born in 2004.
[3] A pseudonym.
[4] A pseudonym.
5Amelia has a younger brother, Eric.[5] The children’s father was Thomas Young.[6] He and Eleanor Arbogast separated in 2008. Ms Eleanor Arbogast re-partnered with a man called Blake.[7] Sadly, both Mr Young and Blake are now deceased.
[5] A pseudonym.
[6] A pseudonym.
[7] A pseudonym.
6You committed offences against Amelia between around 1 November 2014 and 31 January 2016. Amelia was then aged between around 10 and 12 years of age. You were aged 62 to 63 years at the time of your offending. You lived with your wife Camille,[8] Amelia’s grandmother. Both you and your wife had a close and loving relationship with Amelia. You played an important role in her life. After Amelia’s parents separated, you were a father figure to her. She regularly stayed at your home and she went on holidays with you and your wife. Amelia loved playing soccer and you were her coach.
[8] A pseudonym.
Charge 1 — Indecent Act with a Child under 16
7Turning now to the charges, one of the first times that you sexually abused your granddaughter occurred at your home when Amelia was aged around 10 or 11. Your wife Camille was not at home. Under the guise of sex education, you got Amelia to undress and you undressed yourself. You asked Amelia to ‘hump you’ and you thrust your penis against Amelia’s vagina for around 15 minutes. You kissed Amelia. You told her to trust you. This incident ended when you ejaculated into a tissue.
Charge 2 — Indecent Act with a Child under 16
8On this occasion, Amelia was sleeping on a portable cot next to the bed you shared with your wife in your home. You reached down and rubbed Amelia’s vagina with your hand. You didn’t make any sound because your wife Camille was in the bed next to you.
Charges 3 and 4 — Indecent Act with a Child under 16
9Charges 3 and 4 relate to an incident that occurred when Amelia was on holiday with you and your wife at the beach. You stayed in your campervan. There were two beds in the campervan, one at each end. You shared a bed with Amelia, and your wife Camille slept in the other bed. Camille was listening to her portable radio, which she did with an earpiece. You were watching pornography on your mobile phone.
10When Camille was asleep, you started rubbing Amelia’s vagina with your hand over her clothing (charge 3). You always slept naked and began to masturbate your penis with your other hand. Amelia then got on top of you and you ‘humped’ her, that is, you rubbed your penis against Amelia’s vagina (charge 4). You made noises in Amelia’s ear. You and Amelia kissed. You ejaculated into a tissue which you threw in the bin.
Charges 5 and 7 — Incest; Charge 6 — Indecent Act with a Child under 16
11The next occasion occurred at your home. Your wife Camille was not at home. You and Amelia were in the loungeroom. You put pornography on the television. You and Amelia both got undressed and you lay down on the couch.
12You got on top of Amelia and tried to put your penis in her vagina. Amelia’s evidence was that it went in a tiny bit, but it hurt and she said, ‘No’, in response to which you removed your penis and resorted to ‘humping’ her, that is, rubbing your penis against her vagina (charges 5 and 6).
13You then licked Amelia’s vagina. Your tongue went inside her vagina. Your stubble scratched her. Amelia again said, ‘No’, and again you went back to humping her, ejaculating on her stomach (charge 7, which is the penetration of her vagina with your tongue). You were kissing Amelia passionately throughout this incident. At the end of this incident, you thanked Amelia, and she responded, ‘You’re welcome’.
Charge 8 — Indecent Act with a Child under 16
14The final incident in respect of the charged conduct occurred at the tanning studio you ran with your wife. Your daughter Eleanor also worked there. Amelia was at your home and you took her to the salon with you. You went into a backroom where you put pornography on a television that was mounted on a wall. Amelia sat on a chair and you put your hand down your pants and began rubbing your penis. You said to Amelia, ‘Can I have some help, please?’. Amelia said, ‘No’.
15You walked over to Amelia and put your hand down her underwear and began to rub her vagina. You were simultaneously touching your own penis. You ejaculated into a tissue, turned off the pornography and said, ‘Thank you’ to Amelia, and carried on as if nothing had happened.
16You were charged with another charge of indecent act with a child under 16 in respect of this incident. In her video and audio recording of evidence (‘VARE’) with police, Amelia said that at the point she was seated in the chair, you also guided her hand onto your penis. Amelia spoke about this incident in some detail during her police statement and twice gave an account to police of what happened when you approached her when she was sitting in the chair. She only gave evidence that you had guided her hand onto your penis in one of her accounts of the incident. This must have caused the jury some doubt in respect of this charge, and consequently your acquittal on what was charge 9 on the indictment.
17These particularised charges occurred in the context of you regularly sexually abusing Amelia. Amelia said in her police statement that there were ‘so many times’.
18Amelia eventually told her brother Eric and then her father Mr Young on 14 July 2017. It was after Amelia was able to tell her father that police became involved.
19You were interviewed by police on 26 July 2017 and denied the offending. You were charged on 25 October 2019.
Victim Impact Statements
20Four victim impact statements have been tendered at the plea. They are from Cora Young,[9] Amelia’s paternal grandmother, Eric and Eleanor Arbogast, and Amelia.
[9] A pseudonym.
21Mrs Young says that she makes her statement on behalf of herself and her dead son, Amelia’s father. She says her son was intensely distressed when he learnt you had abused his daughter. She says Mr Young died not having seen justice for Amelia.
22Eric and Eleanor Arbogast both speak of the deep grief you have caused the family. Eleanor Arbogast says that your abuse of her daughter has devastated her and has shattered her trust. She blames herself for not protecting Amelia. She says she suffers severe depression and has attempted suicide on one occasion. She suffers chronic fatigue syndrome which is debilitating and which she believes is related to the trauma of learning of your offending. She says your offending has divided the family and she is now estranged from her mother and her brother.
23I cannot do justice to Amelia’s victim impact statement in these sentencing remarks. She says that she loved you and looked up to you, and that your abuse has destroyed her trust and self-confidence and has changed her perspective on life. She says,
Every time I swallow my anxiety pill it just is a reminder of how scarring these past 4 years have been. Every single morning. I have had to alter decisions, choices, emotions, friends and family members due to the pain and chronic suffering he has haunted myself and small family unit with.
24She says your offending sexualised her at a young age and she has experienced bullying and ‘slut shaming’ by her peers. She says she often feels like an outcast. She says she finds social life extremely difficult, as she suffers anxiety. She says playing soccer has always been an outlet for her, but because of your involvement in her soccer, her love of the game has been diminished. She has also struggled at school but has finished year 12.
25Amelia’s statement is a reminder of the profound and long-lasting harmful effects of childhood sexual abuse.
Personal Circumstances
26I turn now to your personal circumstances. You are presently 69 years old. You were born in Northern Ireland. You met your wife Camille when you were both around 11 years of age. You have been married for 50 years and you have two children, your daughter Eleanor and your son Mark.[10]
[10] A pseudonym.
27You are a fitter by trade. You and Camille decided to leave Northern Ireland to get away from the political turmoil and to make a better life for your children.
28In 1984, you emigrated to South Africa. You worked in senior positions for textile companies and Camille worked as a private secretary.
29You came to Melbourne in 1990. You were sponsored to come here by a large textile mill. You worked in the textile industry until around 1999, when you and your wife opened the tanning studio. You worked long hours in this business, which closed down in 2014 following the government ban on the operation of solariums.
30Character references were tendered on your behalf from your wife Camille; Father Paul Lennox[11], who has known you as a member of his congregation for 10 years and who describes you as a caring and empathetic person; your neighbours; your niece; and your wife’s sister-in-law. They all describe you as a caring and generous man, who they support.
[11] A pseudonym.
31Some medical material was filed on your behalf. You are being treated for multiple skin cancers and were due to attend the Peter MacCallum Cancer Centre for treatment, which your trial and conviction has interrupted.
Sentencing Submissions
32I turn now to the submissions of the parties.
33Mr Batten, on behalf of the prosecution, submitted that, in accordance with the authorities, just punishment, general and specific deterrence and denunciation are the pre-eminent sentencing considerations. He referred me to the cases of Reid v The Queen[12] and Director of Public Prosecutions (Vic) v Dalgliesh,[13] which speak of the pernicious nature of the crime of incest.
[12] (2014) 42 VR 295 (‘Reid’).
[13] [2016] VSCA 148 (‘Dalgliesh’).
34In the case of Reid v The Queen, Priest JA stated,
incest is often a crime where the vulnerable, who are worthy of protection, are exploited by those entrusted with their care. It is now seen to be a crime which — when perpetrated by an adult parent (or step-parent or grandparent) against a child — is erosive of human relations, the prominent features of which include ‘the exploitation by the stronger will of the adult of the weaker will of the child, the physical and psychological subordination of the child to the perverted indulgences of the adult, the gross breach of trust placed in the offender by the victim and the community, and the irreparable and fundamental damage to the victim’.[14]
[14] Reid (n 11 ) 310 [83], quoting R v Sposito (Supreme Court of Victoria, Marks, Hampel and McDonald JJ, 8 June 1993).
35In Director of Public Prosecutions (Vic) v Dalgliesh, the Court observed:
Sentencing for incest must reflect society’s denunciation of the sexual abuse of children and the profound harm which it causes. The very high maximum penalty underlines the seriousness with which the offence is regarded. …
Incest is a crime of violence and must be so regarded. General and specific deterrence and denunciation must be given their proper emphasis. The long-term harm done to the victim, now better understood, must be given due weight in the sentencing calculus. Sentences must be commensurate with the seriousness of the breach of parental responsibility involved.[15]
[15] Dalgliesh (n 12) [126], [129].
36On the aggravating features of your offending, Mr Batten submitted that on the charges of incest there was the age disparity between you and your victim, and that a breach of trust was involved because Amelia was in your care when you offended against her. In respect of the offences of indecent act, it was again submitted that the age disparity aggravated the offences and the breach of trust arising from your relationship with Amelia and your caregiving role at the times you offended.
37On your behalf, Ms Swiney submitted that you were of otherwise impeccable character and that prison will be a difficult place for you, given your age and your health difficulties. She did not submit that I should take into account the effects of your incarceration on your wife herself, but submitted I should take into account the effects of the separation on you. Your wife is suffering anxiety and depression as a consequence of your conviction and imprisonment, and this will weigh heavily on you.
38You are also at risk of deportation, never it seems having taken out citizenship. You have no ties or family in Ireland and the prospect of deportation is another matter that will weigh heavily upon you in custody.
39Ms Swiney acknowledged the seriousness of the offending and the engagement of the principles of deterrence, denunciation and just punishment.
Sentencing Considerations
40Your offending was undoubtedly serious.
41You were involved in all aspects of Amelia’s life. You were, as Mr Batten submitted, a surrogate father to her, but instead of protecting and nurturing her, you took advantage of her innocence and used her for your own sexual gratification.
42You manipulated Amelia into thinking that she was a participant in a sexual relationship. You exploited her love and her trust.
43Your offending has fractured, if not destroyed, family relationships. You are supported by your wife and son. Amelia is supported by her mother, Eric, and other family members. The break-up of the family is entirely your doing, and is a consequence of your offending.
44None of this is Amelia’s fault. You are responsible for all the suffering occasioned to your family, including that of your wife.
45I regard your moral culpability as high.
46I turn now to an assessment of the objective gravity of your offending.
47The two charges of incest were of short duration. You desisted from penile and lingual penetration when Amelia said ‘no’ and you did not ejaculate into her vagina. Nevertheless, Amelia was only aged around 10 to 12, and you went on to ejaculate on her stomach. I regard the charges of incest to be around the mid-range of objective gravity.
48In terms of the charges of indecent act, I regard the charges which involve you rubbing your penis against Amelia’s vagina as high-range examples of this offence, which stopped just short of penetration. The touching of her vagina I regard as mid-range objective gravity.
49You are without remorse. This of course does not aggravate your offending, but you are not entitled to the kind of sentencing discount which would have accompanied a plea of guilty, and which would have been a significant matter in a case involving a child victim and in the current context of COVID-19 and its effects on the administration of criminal justice.
50I accept the submissions that prison will be difficult for you, given your age, the separation from your wife, and the prospect of deportation hanging over your head. I take all these factors into account in sentencing you.
51I do not consider that your skin cancer will occasion you any real difficulty in custody and therefore I do not regard ill-health as a relevant matter in sentencing you.
52I regard your prospects of rehabilitation as good and your risk of reoffending as low. I make this assessment on the basis of your hitherto good character and your age.
53I give some mitigatory weight to your prior good character.
54You fall to be sentenced as a serious sexual offender on charges 3–8. Protection of the community must be regarded as the principle purpose for which a sentence is imposed and a presumption of cumulation applies, although the principle of totality is not displaced. The prosecution did not submit that a disproportionate sentence was warranted.
55Even without these provisions, your offending clearly warrants a substantial period of imprisonment. The courts must make it clear that those who corrupt and abuse children must expect stern punishment.
56Taking into account all the relevant matters which I must under the Sentencing Act 1991 (Vic) and matters personal to you, I intend to sentence you as follows.
57You are convicted on all charges.
58On charge 1, you are sentenced to four years’ imprisonment.
59On charge 2, you are sentenced to two and a half years’ imprisonment.
60On charge 3, you are sentenced to two and a half years’ imprisonment.
61On charge 4, you are sentenced to four years’ imprisonment.
62On charge 5, you are sentenced to six years’ imprisonment.
63On charge 6, you are sentenced to four years’ imprisonment.
64On charge 7, you are sentenced to six years’ imprisonment.
65On charge 8, you are sentenced to three years’ imprisonment.
66Charge 7 will be the base charge, and I make the following orders of cumulation: 18 months on charge 1, nine months on charge 2, 18 months on charge 4, one year on charge 5, and nine months on charge 8.
67That makes a total effective sentence of 11 and a half years. I fix a non-parole period of eight years. I declare that you have served 101 days of pre-sentence detention.
68The provisions of the Sex Offenders Registration Act 2004 (Vic) apply and you will become a registered sex offender. The reporting period is life.
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