Director of Public Prosecutions v Arnold (a pseudonym)

[2021] VCC 1943

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

KRISTOPHER ARNOLD (A PSEUDONYM)

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:	24-27 May 2021
DATE OF SENTENCE:	29 November 2021
CASE MAY BE CITED AS:	DPP v Arnold (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2021] VCC 1943

REASONS FOR SENTENCE

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Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms G. Mazzone
For the Accused	Mr J. Lavery

HER HONOUR: 

1Kristopher Arnold[1], a jury has found you guilty of one charge of sexual penetration of a child you knew to be the child of your domestic partner.  You were also acquitted of Charge 2 on the indictment which was the same charge.  The facts underlying your offending are as follows.  The victim was eight year old Cheyenne Singh[2], the daughter of your then partner Aya Singh[3].  You had been in a relationship on an off and on basis with Ms Singh for about four years but were residing with her at the time in her home in regional Victoria.  Also present at the home was her then three year old daughter Miley[4]. 

[1] A pseudonym.

[2] A pseudonym.

[3] A pseudonym.

[4] A pseudonym.

2On the evening of 14 August 2019 Aya left the house on two occasions between 9 and 10.15 pm and 10.45 and 11.45 pm.  During those times you were at home and looking after her daughters who were asleep in bed.  While Aya was out you went into the bedroom which Cheyenne and Miley shared.  The girls were asleep in their bunk bed.  Cheyenne was in the top bunk and you woke her and asked her to play a game where you would give her money.  You told her the game was called gibble gobble and you told her that you would put a hairbrush in her mouth and then give her money.  Cheyenne agreed to this and climbed down from the top bunk. 

3You then tied pants around her head covering her eyes and then put your penis into her mouth and ejaculated.  You untied the pants and told her not to tell anyone or she would not get the money, and then you paid her.  Cheyenne went to the kitchen and got a drink of water and spat it out to remove the salty taste from her mouth.  The next morning at about 7.15 am she told her mother that you had put something squishy in her mouth and she thought it was your willy, her name for penis.  By this stage you yourself were out with a friend. 

4Aya contacted you and told you to come home immediately and then confronted you outside the house in the driveway.  You told her that Cheyenne talked ‘a lot of shit’ and went inside to speak to Cheyenne.  You then came out and told Aya that Cheyenne had said it was not you and that she must have been dreaming.  Nothing happened for some time as Aya believed that her daughter had made a mistake.  Some time later, however, Cheyenne told her best friend that you had made her suck your willy.  That friend told her mother who reported the matter. 

5On 2 October 2019 Cheyenne made a VARE, repeating the allegations.  You were arrested that day and interviewed.  In your record of interview you denied the allegations.  You were remanded in custody, but while there you both telephoned and wrote to your former partner Malika Cuomo[5] who is the mother of three of your four sons.  In several calls which were recorded, you admitted the offending, saying it had come about because of your drug use.

[5] A pseudonym.

6In one call,  you said, ‘All it took was for one night.  I had it, and she went to pick one of our mates up, and it was the first time that left me home off my face with the girls and the unthinkable happened.’  You also said, ‘I don’t know how to explain it other than it made sex feel so damn good.  That’s why I kept taking them.  Had I known any of this would’ve put the kids at risk it never would’ve been at the house and I would’ve never taken them in the first place.  Too little too late.’ 

7You told Ms Cuomo that you had no sexual interest in children, describing what you did as ‘a disgusting drug-affected decision’ which was ‘a one off.’  You told Ms Cuomo both in letters and in telephone conversations that you intended to plead guilty and plead guilty early to the offending;  however, ultimately you entered a plea of not guilty and, as I have said, a jury found you guilty of the offending I have described.  I now turn to your personal circumstances. 

8You are a 28 year old First Nation man, one of two, two boys born to your parents.  Your brother is two years older than you.  You were born in Moe and your parents separated when you were very young and you had little or no contact with your father in your early years.  Your mother then re-partnered with a man who was physically, emotionally, and sexually abusive towards you.  You recalled certain actions by him, in particular, that when you wet your nappy he would make you stand in a chook pen. 

9On one of those occasions your grandmother arrived to find you standing there and took you and your brother to live with her.  This, however, was extremely difficult for you as at the time your uncle, who also lived with your grandmother, was suffering terminal bowel and stomach cancer and you essentially watched him waste away and die.  You did not see your mother much in the years that you were living with your grandmother.  You eventually moved back to live with her as by then you were traumatised at watching your uncle’s deterioration and suffering. 

10By this stage she had a new partner, who was a good man, and you called him Dad.  He and your mother had a further two daughters.  However, your mother then suddenly started sending you and your brother for weekend visits with your father.  You were then aged 12 and had virtually not seen him since you were born.  He was a drug addict.  He lived a chaotic lifestyle.  He left drugs lying around and he was extremely neglectful of you.  Ultimately, your brother refused to go and you went alone.  By this stage you had started using drugs yourself. 

11You began using cannabis when you were aged about 14 and this quickly progressed to binge drinking of alcohol, which you stopped when you were 18, but you also began random polysubstance drug use.  You used ecstasy;  you used Xanax.  You used, you told one psychologist, anything you could lay your hands on, including speed, and from the age of 20 you regularly used ice.  Your father left drugs lying around.  You ultimately ended up spending more time living with your father than with your mother.  You were essentially neglected and your drug use got worse.   

12In one report it was said you got partway through year 9; in another, partway through year 10 at the high school in Wonthaggi.  You then undertook a fitter and turner’s apprenticeship, but eventually had difficulties with emerging anxiety, depression and drug use.  You then worked as a plasterer and with a man who set up boxing rings for events on the weekends, and you described this to psychologist Megan Rogers, whose report dated 11 July 2021 was tendered on the plea, as the most stable time in your life. 

13You formed a relationship of which your eldest son was born, and then you formed a relationship with Ms Cuomo of whom three sons were born.  You stabilised during that time.  You began a certificate course with forestry management at TAFE and you were employed as a courier driver in Morwell.  However, a close friend was murdered and your grandmother suddenly died, and you spiralled back into drug use and began offending.  You ended up at Wulgunggo Ngalu Learning Place on an order from the court, but then discovered that Ms Cuomo had formed a new relationship.  You had tried to reconcile with her, and the fact that you could not was a great blow. 

14It was at this time you made a suicide attempt by trying to hang yourself.  You were hospitalised in the Flynn Ward at the Latrobe Regional Hospital for three weeks.  You also received an operation for a brain malformation where brain tissue extends into the spinal cord.  This was successful.  The surgery occurred, I think, in 2018.  I may have got my chronology a little wrong.  It may be that after that time, after the operation, that you then went to Wulgunggo Ngalu and after trying to reconcile with Malika, but relapsed into drug use. 

15You then began a relationship with Aya.  Ms Rogers stated in her report:  ‘At the time at which the arrest for arrest offences were charged, he was living a chaotic lifestyle characterised by negative relationships, substance abuse and offending.’  She said, ‘This underpinned a history of trauma and symptoms of drug and alcohol abuse.’  You began suffering auditory hallucinations when you were about 17, according to Dr Lester Walton - whose report dated 15 September 2021 was also tendered on the plea. 

16Ultimately, you were placed on anti-psychotic medication by a GP.  It would appear from what you told Ms Cuomo that at the time of this offending you had gone off this medication.  You have also been medicated for anxiety and depression.  Testing by Ms Rogers revealed post-traumatic stress disorder, severe depression, and extremely severe anxiety.  You have apparently been doing well in gaol.  You are a billet.  You are undertaking physical exercise.  You are undertaking education and engaging in Koori art. 

17As a result of this offending you have no contact with your sons which, I understand, is a great grief for you.  It was clear from evidence on the plea that although you were no longer living with Ms Cuomo, you were very much involved in the care of all your sons and were a concerned and proactive father.  As a result of this offending, Ms Cuomo is understandably in a position where she is no longer prepared to support your relationship with your boys, and this extends to your oldest son.  As I have said, I understand this has been one of the great losses for you as a result of this offending. 

18I received a great deal of psychological, neuropsychological, and psychiatric material.  All of the testing and findings were hampered by the fact that since the verdict came in, particularly given that you were found not guilty on the second charge, you have reached the conclusion that you did not commit this offending, and you now completely deny it.  The problem for you, of course, Mr Arnold, is that a jury has found you guilty of one charge, even if it has not found you guilty of another. 

19I regard the Crown case to have been a strong Crown case, and certainly it is clear that the jury accepted that what you wrote to Ms Cuomo was true.  I am not 100 per cent clear as to why you have so adamantly decided that you are not guilty of these charges.  It appears to be that you have regained some memory of this night, that you yourself cannot believe you would behave in this way.  To some extent, this is understandable.  I accept that you are not a person who has a paedophilic interest in children.  I accept that you love your sons very much, that you have always wanted to be a good father to them. 

20It may be possible, the thought that you behaved in the way that a jury has found you did towards Cheyenne, your eight year old effective stepdaughter at the time, is simply too much for you.  In any event, I am left in the situation now where I must sentence you for this serious offending which carries a maximum penalty of 25 years’ imprisonment.  There is also what is called a standard sentence which applies to this offending of 10 years.  A standard sentence is assessed by looking at all the objective factors of a case, that is, essentially what happened. 

21It does not take into account the subjective factors, the matters personal to you that can also affect the sentence that is ultimately handed down.  In his report, neuropsychologist Dr March noted that you have no intellectual damage and no intellectual disability.  Dr Walton noted that you are currently being medicated by long-lasting Seroquel which mostly but not completely deals with your auditory hallucinations.  But Dr March found that you were a person who easily fitted in to the average range of intelligence, and that says to me for what it is worth, Mr Arnold, that you are a person of intelligence. 

22You have a good intellect.  That is important.  It plays into your prospects of rehabilitation which is something that a judge must take into account in determining the appropriate sentence.  I look back to what you said and wrote to Ms Cuomo when you talked about the effect of drugs upon you on that night.  It was conceded by the prosecution that your prospects for rehabilitation largely centre around your capacity to deal with your drug problem. 

23Can I say this to you, Mr Arnold:  it is clear to me on the material I have received, the psychiatric, the psychological, and the neuropsychological material, and on the evidence I heard on the trial, in particular the evidence of Ms Singh about what sexual relations were like with you at the time, that they were obviously heightened, that you need to understand that although you are a man who would ordinarily never think of himself as a person who would harm a child in any way, and even though you do not accept that you behaved in the way you do, that my view of the material is that when you are in a heightened state by using drugs which also heightens your sexual drive, you will seek to satisfy that sexual drive in a way that you ordinarily would never consider, that you will use anyone and anything to satisfy that sexual drive when you are in that state. 

24That does not mean you are a danger to children, but it does mean that you are a danger to other people, including children, when you are using drugs to the level that you were at the time because it can cause you to behave in a way which you would never have thought possible that you would behave in an ordinary state.  Notwithstanding that you pleaded not guilty at the trial, I do regard what you wrote and what you said to Ms Cuomo indicated a real anguish and a real remorse for offending in that way. 

25It is largely for that reason that I am able to draw the conclusion that this offending occurred because of a particular set of circumstances that was existing at the time.  You also told - I think it was either Dr Walton or Ms Rogers that at the time of this offending your relationship with Ms Singh was very much deteriorating.  You were using a lot of drugs.  You were on the edge of separation.  I also take into account your extremely difficult and traumatic history.  It is clear that you suffered horrendous and traumatic abuse at the hands of your mother’s partner when you were just a little boy. 

26I accept that you went through further trauma whilst you were living with your grandmother and watching your uncle literally, as you told Ms Rogers, starve to death as a result of the cancer he was suffering.  I accept that you were as a young teenager placed in the very inappropriate care of your father who was neglectful, whose main use to you, it would seem, was the fact that he left drugs lying around.  I look at your prior criminal history which, given the traumatic situation of your life, is not as bad as it could be.  I am not saying it is a good prior criminal history, but it is relatively confined. 

27It goes back to 2011 when you were dealt with in the Children’s Court for driving offences.  Then in 2014 you were dealt with for recklessly causing serious injury, affray, and recklessly causing injury.  You were placed on a community corrections order.  In 2015 you were dealt with for dealing with proceeds of crime, unlawful assault, dangerous driving, failing to stop at a police request.  Again, you were placed on a community corrections order.  2017, dangerous driving whilst pursued by police, another community corrections order. 

28And then finally in 2018, handling stolen goods, prohibited person possessing a firearm which is always a bit concerning, possessing cartridge ammunition, breaching a family violence intervention order.  Again, it is not a great prior history, but this court is used to seeing people with far more in the way of offending than appears on your record.  You are a person with some promise, Mr Arnold.  You are an intelligent person.  You have clearly been capable of employment in the past.  I note that ultimately you had to stop working because anxiety and depression overtook you. 

29And it does seem that your drug use seems to be a way of you coping with the emotional trauma that understandably you have to deal with.  As I have said, the problem is that when you are using drugs, it appears that your offending is extremely concerning, and it is to be hoped that in the future you can attend to that drug use in order to lead a life for eventually hopefully you can make contact with your sons once more, use that brain that you have, and get on top of and manage the psychiatric and psychological difficulties that you understandably suffer.  Having said all that, the offending that you engaged in has caused enormous suffering. 

30I received victim impact statements from Ms Singh and her daughter.  Cheyenne now suffers from nightmares.  She does not feel safe.  She has trouble going to school because she would rather stay at home.  She does not trust those persons around her.  She gets very anxious, according to her mother, about going to school and first has to go through a list of everything that could go wrong.  These are effects that are entirely familiar to these courts, suffered by children who have been the result of sexual abuse at the hands of someone they trust.  It upends their whole world. 

31It is to be expected that both Ms Singh and Cheyenne are going to suffer from these problems and difficulties for the foreseeable future.  The offending was a terrible breach of trust.  You were the one looking after those children in a parental position at the time that this offending occurred.  It was - and this is very much attached to the drug use - gross offending against a child in order to satisfy a sexual need which, as I have said, I accept as a result of your drug use.  Nevertheless, that is what it was. 

32And what is important for you, Mr Arnold, no matter what you may have convinced yourself is the situation, you should - and I simply say this in a personal sense - consider the fact that your drug use makes you dangerous, as I have said, and makes you capable of behaving in a way towards children that you would normally never have thought possible.  To some extent, looking at the way in which you successfully partnered your sons with Ms Cuomo and the clear care and love, as I have said, that you have for them, I can understand that to some extent you perhaps cannot even bear the thought that you might have behaved in this way. 

Certainly, the drugs you were on at the time may well have impeded your memory and allowed you to persuade yourself that this did not happen.  A jury has found that you have, however, Mr Arnold, and I must deal with you that way.  As I have said, the standard sentence for this offending is 10 years’ imprisonment; however, in your case I do accept the psychiatric and psychological material that because of your mental illness - and, in fact, Dr Walton describes it as a schizophrenia which is now controlled - because of the auditory hallucinations - and I note that he notes a family history of mental illness, you have a half-sister who suffers from schizophrenia, your older brother clearly has depression - a term of imprisonment is going to be more difficult for you than for the normal prisoner.  I accept that the principles of Bugmy have application here.  You have suffered the sorts of traumas, abuse and neglect that are mentioned in the High Court case of Bugmy, and I do take them into account in sentencing you.  I also accept that a result of this offending, as I have said, has been that your separation from your sons, which is of enormous grief to you, and these are all matters that I take into account in determining that a term of imprisonment is going to be more difficult for you than for other prisoners. 

33I have already said that there is nothing in the material before me to indicate that you have a sexual interest in children and I have already outlined my view of that material insofar as this offending, which I accept was otherwise uncharacteristic for you, did occur.  Your prospects of rehabilitation, really, if you can properly deal with your drug use and understand and really accept the way it has affected your life, are guardedly optimistic.  And by guardedly, I am not saying 100 per cent you have got good prospects of rehabilitation, Mr Arnold, because of this terrible offending and because of your drug use. 

34It is all around your drug use.  If you can give away drugs, if you can attend to the sort of mental health difficulties that you have because of what life has inflicted upon you, yes, I think you will have a good future, but you have a lot of work to do.  Taking all these matters into account, I do accept that - I may be criticised for having said this - at some level that you are not prepared to accept now, you are remorseful for this offending, even though you did not demonstrate it by the way in which you undertook your trial, and even though you are now completely in denial about what the jury found that you did, and I repeat, I regard the prosecution case as a strong case and I regard what you wrote and said to Ms Cuomo as genuine, even if you now deny it. 

35However, on the face of it, having made the statement that I think - or the comment that I regard you as almost a subconscious level of being remorseful, this is not something I can heavily take into account.  The law says that you pleaded not guilty;  you therefore cannot take advantage of any of the mitigation, that is, the lesser sentencing that goes to somebody who pleads guilty to this offending.  You yourself recognised this in the conversations you had with Ms Cuomo about if you entered a plea of guilty, you recognised you would receive a lesser sentence. 

36You decided not to, and therefore you do not get that discount, if I can put it that way.  You put both Aya and her daughter through the trauma of giving evidence at trial and cross-examination.  Probably, I have said what I have said about the subconscious level of remorse because it seems to me the path you are on in terms of this denial is not a healthy one.  But for legal sentencing purposes, you have not shown remorse.  You have put Aya and Cheyenne through a trial. 

37You continue to maintain your denial in the face of this strong evidence.  I do accept your traumatic background.  I do accept the principles arising from Bugmy, and I do accept that you are likely to find a service of imprisonment more difficult than an ordinary prisoners, and I accept that you have guardedly reasonable prospects of rehabilitation, depending on how you deal with your drug use.  Taking all these matters into account, I therefore sentence you as follows.  On this charge you will be sentenced to seven years’ imprisonment, and I order that you serve a minimum term of five years before becoming eligible for parole.  What is the PSD, please, Madam Prosecutor?

38MS MAZZONE:  Your Honour, it is 789 days, not including today.

39HER HONOUR:  I declare that you have served 789 days by way of pre-sentence detention.  You will also be placed on the sex offenders register for a period of 15 years.  Is there anything else that I need to attend to?

40MS MAZZONE:  No, Your Honour.

41HER HONOUR:  Thank you very much.  We will stand down to 11.30.

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