Director of Public Prosecutions v Archdall

[2014] VCC 521

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT WARRNAMBOOL
CRIMINAL JURISDICTION

CR-14-00285

DIRECTOR OF PUBLIC PROSECUTIONS

v

OSCAR ARCHDALL (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE GRANT
WHERE HELD:	Warrnambool
DATE OF HEARING:	9 April 2014
DATE OF SENTENCE:	10 April 2014
CASE MAY BE CITED AS:	DPP v Archdall
MEDIUM NEUTRAL CITATION:	[2014] VCC 521

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. O'Doherty	OPP
For the Offender	Mr  S Payne for Plea Mr  X. Farrelly for Sentence	Victoria Legal Aid

NOTE: The prosecution summary is located on the court file, and access to it should be applied for in the usual way, through Registry.

HIS HONOUR:  

1Oscar Archdall, you have pleaded guilty to two charges of incest.  At the time the offences were committed, the maximum penalty for incest was 20 years' imprisonment. 

2I have heard a summary of the offending.  I do not intend to repeat the summary.  It will be attached to these remarks as Exhibit A.

3Briefly, the complainant is your stepdaughter.  The first offence occurred in 1969 and the second in 1970.  At the time the offences were committed, you were aged between 38 and 40.  The complainant was aged between 17 and 19.  The offending occurred on the family farm.

4Charge 1 relates to a time in 1969 when the complainant was walking through the bush on the family farm.  She came across you cutting posts near a creek.  The complainant was frightened.  You assisted the complainant to lie on the ground, you took her bottom clothes off, lay on top of her and had sexual intercourse with her.  After finishing, you told the complainant that you just wanted to be the first.  The complainant returned to the house, where she pretended that nothing had happened.

5Charge 2 relates to a time in 1970  It was a weekend when the complainant had returned to the family farm from the teachers college in Geelong where she was studying.  On the night in question the complainant had been riding her horse on the property.  She returned to the cow shed, where you grabbed her and threw her on the ground.  You proceeded to have sex with her.  You were particularly rough with her on this occasion.  She again returned to the house and pretended that nothing had happened.

6The complainant confronted you about your criminal behaviour in 1997.  You told her to forget about it. 

7On 7 August 2000 the complainant confronted you in the presence of her sisters and her mother.  You initially denied everything before then admitting that you had abused her.

8The complainant reported the matter to police in December 2012 and you were subsequently interviewed and made full admissions to the offending. 

9Mr Archdall, incest is a very serious breach of the criminal law.  It strikes at the very heart of family life and involves a gross breach of trust.  For these reasons, punishment, general deterrence and denunciation are highly relevant sentencing considerations.

10The complainant read her victim impact statement to the court.  The statement details the harm that she has suffered as a result of your criminal behaviour.

11Your role was to protect and support your stepdaughter.  Instead, you completely betrayed her trust.  Because of your criminal acts, the complainant lost her innocence, her family, her career and her health.  On the latter point, the complainant has explained how she suffers from a major depressive illness and has been in receipt of a disability support pension since February 2001.

12Mr Archdall, your stepdaughter has suffered greatly as a result of your criminal acts.

13In determining an appropriate sentence, I must, of course, take account of the relevant and important matters in mitigation.  You are a man without any prior convictions.  You have been a hardworking man and, apart from these two offences, have led a law-abiding life.  These are matters of some importance.  However, you also need to understand that in cases where there has been serious offending of this type, previous good character has less relevance than it might do for other offences.  This is because offences such as incest are often perpetrated by people who are otherwise of good character. 

14You made full admissions to the police and entered an early plea of guilty, and this is very much to your credit.  Your plea of guilty has relieved the complainant from the burden of giving evidence.  This is significant because an incest trial can be an extremely traumatic experience for a complainant.  I accept that you are ashamed of what you have done.  I accept that you are remorseful.  Your plea of guilty has also avoided the time and costs involved in a criminal trial. 

15There has been a delay in these matters coming to the attention of the police.  The reason for that delay is entirely understandable.  Since the offending you have lived a blameless and productive life.  The delay also means that, at 83 years old, you are most unlikely to ever reoffend.  These are important matters in your favour.  However, these considerations are to be balanced against the seriousness of your offending and the general sentencing considerations applicable to this crime. 

16You are an 83 year old man with a number of medical conditions.  Those conditions are described in a medical report from Dr Rieger as atrial fibrillation, hypercholesterolemia, ischemic heart disease, mild chronic obstructive airway disease, enlarged prostate, depression, hyperthyroidism and degenerative disease of the lumbar spine. 

17Those conditions that can be managed with medication are currently being well managed in that way.  Even so, I accept the sentence I impose will need to be moderated in recognition of your age and medical conditions.  I am satisfied that your age, your depression and your other health conditions in combination will make gaol particularly onerous for you.

18Mr Archdall, notwithstanding the important and relevant matters in mitigation, the seriousness of this offending requires the imposition of an immediate gaol term.  Your offending involved a gross breach of trust that has had a profound impact on the victim.

19Mr Archdall, will you stand, please.

20Mr Archdall, on each charge you will be convicted and sentenced to three years' imprisonment.  I order one year of the sentence on Charge 2 be served cumulatively on the sentence on Charge 1.  This makes a total effective term of four years' imprisonment. 

21I order that you serve a minimum of 21 months before being eligible for release on parole. 

22I make a declaration that you have served one day by way of pre-sentence detention. 

23If you had been found guilty after trial, you would have been sentenced to a total effective term of six years with a minimum of three and a half years. 

24I order that you undergo a forensic procedure for the taking of a scraping from your mouth.  The seriousness of the offending and the public interest warrant the making of such an order.

25Mr Archdall, if you do not co-operate with the authorities in the taking of the sample, reasonable force may be used to enable the procedure to be conducted.  You can be seated there.

26Is there anything else, Mr O'Doherty?

27MR O'DOHERTY:  I just want to raise a matter with you, Your Honour, that involves the complainant Ms Gresswell[1].

[1] A pseudonym has been used for the complainant in this matter.

28HIS HONOUR:  Yes, certainly.

29MR O'DOHERTY:  She has indicated, Your Honour, that notwithstanding the statutory prohibitions to publication and disclosure of victims in these sorts of cases, she - and I am not quite certain exactly what it is she wants to occur, but I think it is that she wants the media, if they're inclined to publish anything about this case in the normal way without disclosure, to disclose her name.  So I asked her to stay her so that she might clarify that with Your Honour.

30HIS HONOUR: All right. Of course, the legislation does not permit, as I understand it, publication of the details of a person in a way that might lead to their identification if they are a complainant in this sort of offence. I might be wrong on that. I'll have to have a look at the relevant provisions of the Judicial Proceedings Reports Act. I understood it was a clear and mandatory prohibition, but perhaps I will ask my associate to provide me with the relevant legislative provisions.

31MR O'DOHERTY:  I haven't looked at it at all, Your Honour, so I can't assist.  I'm not familiar with it in that sense.  I've never had a complainant who wants to be identified.

32HIS HONOUR:  All right.  Ms Gresswell, you have indicated that, from your point of view, there would be no objection to the reporting of this matter or a report that would identify you; is that correct?

33MS GRESSWELL:  Yes, Your Honour.

34HIS HONOUR:  That may not be possible, because there is legislation that, as I understand it, has mandatory application and does not allow the press to identify complainants in this sort of case, and I am not sure that I have the capacity to waive that requirement even if that is at the request of a complainant.  But what I will do is, I am just getting a copy of the relevant legislation so I can have a look at it, and then I will talk further with you, if that is all right?

35MS GRESSWELL:  Yes.

36HIS HONOUR:  Mr Farrelly, have you got an interest in this discussion?  Your client can be removed unless you ask that he remain while we resolve this issue. 

37MR FARRELLY:  Certainly I think my client would have an interest, Your Honour.

38HIS HONOUR:  All right.  He can remain here just for the moment.  I think the legislation might provide an absolute bar to this, but I will just check it. 

39Ms Gresswell, my understanding of the law, and this comes from me reading a statute which is called the Judicial Proceedings Report Act of 1958, my reading of that statute is that it makes it - or it completely prohibits the publishing of any particulars that are likely to lead to the identification of a person against whom a sexual offence is alleged to have been committed, and what it does is, it says that if a newspaper, for example, or a television report did publish that information that identified a person, there would be a very serious criminal offence committed and there would be a prosecution, and although there are exceptions if the proceeding is not pending, or indeed, if the proceedings are still pending, there seems to me to be no exception in this case where the matter has been resolved and the court has made sentencing orders.  So, there is no bar to reporting, of course, what happened in a court, but it has to be done in a way which doesn't identify you.

40MS GRESSWELL:  I understand.

41HIS HONOUR:  It seems, as you will understand, that the intention of Parliament is to try to protect the privacy of those people who have suffered as a result of these particular criminal acts, and you have a very strong view, obviously, about what you would like to occur, but the law does not permit it.  All right?

42MS GRESSWELL:  Yes, thank you, sir.

43HIS HONOUR:  Yes, thank you, Ms Gresswell.

44MR THOMPSON:  Your Honour, Andrew Thompson from the Warrnambool Standard newspaper.

45HIS HONOUR:  Yes, Mr Thompson.

46MR THOMPSON:  In relation to this issue, I have, in the past, published names with the agreement of the victims and I have not been prosecuted, but there is another way around it.

47HIS HONOUR:  All I can say, Mr Thompson, is that I am not going to give you legal advice on this.  It would be something that you would need to speak to your own lawyers about.  My understanding of the Act is that it is an absolute prohibition.  There are exceptions if a proceeding is pending or if the proceeding - even if a proceeding is not pending.  This is not a pending proceeding.  Of course, whether a breach is prosecuted is not a matter for me so much, but a matter for the Director of Public Prosecutions.  All I can say is that I have indicated my view on the matter.  If you take legal advice, that's a matter for you.  

48MR THOMPSON:  Thank you, Your Honour.

49HIS HONOUR:  Yes, all right.  Look, thank you, Ms Gresswell.  The prisoner can be removed. 

‑ ‑ 

Exhibit A:

*** The prosecution summary is located on the court file, and access to it should be applied for in the usual way, through Registry.