Director of Public Prosecutions v Ashwood (a pseudonym)

[2022] VCC 1896

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

 Revised
Not Restricted
 Suitable for Publication

THE DIRECTOR OF PUBLIC PROSECUTIONS

v

PETER ASHWOOD (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	Trial in Shepparton – 6-14 June 2022 Plea 25 July
DATE OF SENTENCE:	9 September 2022.
CASE MAY BE CITED AS:	DPP v Ashwood (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2022] VCC 1896

REASONS FOR SENTENCE
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Subject: (8) charges of sexual penetration of a step child, incest (Charges 1 to 8). 1 Charge of producing child abuse material. (Charge 9)

Sentence: 12 years imprisonment with a non parole period of 7 and ½ years.

SORA - life

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. D'Arcy	Office of Public Prosecutions
For the Accused	Mr Russo

HIS HONOUR:

1In these sentencing remarks you will be referred to by the pseudonym
Peter Ashwood.  Your wife by the pseudonym Lyla, your granddaughter
 by the pseudonym Sharon, and step daughter, will be referred to by the pseudonym Debbie.

2After a five day trial in the County Court at Shepparton you have been convicted of eight (8) charges of sexual penetration of a step child, incest (Charges 1 to 8).  The maximum penalty for the offence of incest is imprisonment for 25 years.  You have also been convicted of one charge of producing child abuse material
(Charge 9).  The maximum penalty for this offence is imprisonment for 10 years.

3Incest is a standard sentencing offence.  The standard sentence for the offence of incest is 10 years' imprisonment.  That means ss5A, 5B and 11A of the
Sentencing Act 1991 have application here, as well as s5 and all other relevant and applicable sentencing principles.

4In sentencing on each of the charges of incest I must take the standard sentence of 10 years' imprisonment into account as one of many factors relevant to the sentencing of you.

5The standard sentence of 10 years' imprisonment for the offence of incest is but one guide post for the court to have regard to.  The standard sentence is the sentence for the offence taking into account only the objective factors affecting the relative seriousness of the offence.  The objective factors affecting the relative seriousness of the offence must be decided without reference to factors personal to you, such as your lack of prior convictions and your state of physical and mental health.  The sentence must be decided wholly be reference to the nature of the offending.  The standard sentence of 10 years' imprisonment is the sentence to be imposed for a middle range offence of incest.

6Section 11A(4) of the Sentencing Act provides that in fixing a non-parole period for a standard sentencing offence, I must fix a non-parole period equivalent to at least 60 per cent of the head sentence unless it is in the interest of justice not to do so.

7Although you cannot be penalised for having pleaded not guilty to each charge, at the same time you cannot expect to receive a reduction in sentence which would normally follow had you pleaded guilty to the charges.

8The following facts must be assumed to have been accepted by the jury.  In my judgement they were clearly made out by the evidence.

9You were born in January of 1957.  You were aged 62 at the commencement of this offending.  You are now aged 65 years.  Around 2003 you began a relationship with Lyla Ashwood.  You both married in 2010.

10Your wife Lyla is the mother of Debbie who was born in 1985.  Debbie in turn is the mother of six children, and most relevantly here, she is the mother of the victim of your crimes, Sharon who was born in May 2002.  She was aged 17 during the period of offending, and she is now aged 20 years.  Sharon is thus one of a number of grandchildren of your wife Lyla.  By law she is your
step-daughter.

11In April 2016 the six children of Debbie were placed into the care of their maternal grandmother, your wife Lyla.  This was pursuant to a guardianship order.  This came about because Debbie had entered into a relationship with a man who was a registered sex offender.  From the description given by Sharon in her VARE interview with the police conducted on 22 April 2020 Debbie's family, with her then partner, had become totally dysfunctional.

12Debbie's children came to live with you and your wife in western Victoria.  Later that year you and your wife and the six children moved to better premises in eastern Victoria to accommodate the children.

13Sharon told police in the VARE that because of what had happened in her childhood she became very clingy towards you.  She gave evidence in the VARE that she felt safe with you and she felt that nobody could hurt her when she was with you.  She said she would sit on your knee in public and not even be a metre apart from you.  She conceded that the relationship between you and her (Sharon) looked 'Dicky' as she put it, especially to her grandmother, your wife.

14In April of 2020 your wife Lyla held suspicions that you were having an inappropriate relationship with Sharon.  She confronted you about this and asked both you and Sharon to leave the house.  You and Sharon both left the house on
2 April and you both slept the night in a motor home being a converted bus that you had built.

15Sharon gave evidence that this was the first and only occasion that anything sexual had occurred between the two of you.  Questions 184 to 190.  In her VARE at Question 239 and following she described how you put your penis into her vagina.  She said you stopped when she said 'this isn't right'.  She said she started crying.  She said the sexual penetration in the way described lasted 'not even five minutes'.  At Question 249 she said it had not happened any other time.

16This was the evidence that founded the prosecution case on Charge 4, the only charge that Sharon conceded.  See special hearing transcript p16.  In her VARE, and in her evidence at special hearing, Sharon was largely protective of you and seemed to blame herself for what had occurred between the two of you.  See special hearing transcript pp16-19.  She denied there had been any other acts of sexual penetration of her by you and she denied that you had ever taken inappropriate photographs of her.  See special hearing transcript pp32-34.  The evidence showed that Sharon was protective of you and downplayed what you had done to her.  A number of SMS messages exchanged between you and Sharon on 21 April 2021 showed that this was the case (Exhibit M).

17Your wife had been viewing messaging between you and Sharon on the app known as Snapchat.  She confronted Sharon and accused her of having sex with you, her husband.  Sharon told her that she had, and that she was ashamed of having done so.  Question 293.

18Your wife Lyla objected to giving evidence against you but I dismissed her application before the jury was empanelled.  She was an important witness in the prosecution case.  Although she initially did not wish to give evidence, she was an impressive witness and a truthful witness.  She gave evidence Sharon was clingy to you and treated you like a father figure.  She said Sharon would kiss you on the lips in front of people and she would position herself in front of you with her back to you and lean into you.  She gave evidence about how she suspected something was going on between the two of you in February 2020 and how she confronted both you and Sharon about her suspicions and ordered the both of you from the house.  She gave evidence you and Sharon left the house and went off in the mobile motor home with Sharon returning after about a week.

19You continued to contact Sharon and Lyla gave evidence of having continued to look at the Snapchat messages passing between you.  She said she was distraught by what she had read and she confronted Sharon and accused her of having an affair with you which Sharon admitted.  The Snapchat messages to and from Sharon were with a person described as 'Panda'.  Sharon admitted that Panda was in fact you.  Lyla gave evidence that she confronted you with the allegations of an affair with Sharon but you denied there was.  You admitted to her that you were 'Panda'.

20The prosecution relied upon tendency evidence.  It alleged the evidence showed you had a sexual interest in Sharon and a tendency to act on that interest.  It relied upon the evidence of Sharon that there were occasions when you would go into the bathroom when Sharon was showering thereby observing her naked.  It relied on evidence of Sharon that she had asked you to apply eczema cream to her back and breast.  It relied upon the evidence of Sharon that you would often kiss her on the lips.  The prosecution relied upon Sharon's evidence that there was an occasion when you went to her bedroom and you rubbed your hands all over her body over her clothing.

21Sharon did give evidence that there was a relationship between you and her from about three months after she turned 16.  She said you would rest your head on her breasts.  Sharon said 'we would tell each other that we loved one another', and that we wanted to be together 'in a boyfriend girlfriend relationship'.  She said 'Pop told me that I had to keep our relationship secret and that it wouldn't go down too well if Nan found out about it'.  See special hearing transcript p31.

22Notwithstanding that Sharon had not incriminated you for any acts of sexual penetration, other than what was alleged in Charge 4, there was ample other evidence that you had in fact committed the acts of sexual penetration of Sharon alleged in Charges 1 to 3 inclusive and 5 to 8 inclusive.

23On 22 April 2020 police conducted a lengthy record of interview with you.  At
Question 28 you told police you loved Sharon.  You told police you started having feelings for Sharon before she had turned 17.  At Question 31 you told police your words were '[Sharon] I love you' and she said 'I feel the same'.  You told police you and Sharon agreed that nothing could ever happen between the two of you other than kisses and cuddles.  What you described to police as a 'father-daughter relationship'.  Question 33.

24In your record of interview you told police that your wife had told you to stay away from Sharon.  You described to police your version of Charge 4 telling them that you had slept with Sharon but that nothing had happened between you and her because you are impotent and cannot have an erection.  Question 39.

25In your record of interview you initially told police you loved Sharon but that nothing physically sexual had occurred between the two of you.  You acknowledged your feelings for her were wrong because you were then aged 63 and Sharon was
aged 17.  At Question 117 you said you didn't want to lose Sharon out of your life.  At Question 118 you said Sharon was the only person you trust.  You said 'I trust her with my life.  I trust her with everything'.

26You continued to deny Charge 4 but at Question 165 and following you told police that Sharon had orgasmed whilst on top of you with her clitoris against your penis.  At Question 178 you denied your penis was near her vagina.  At Question 183 you said your penis might have been close to Sharon's vagina 'but I don't think it was actually in it, but then again there was that much happening that night I really don't know'.

27At Question 222 you told police that you were getting back with Lyla who was trying to get Debbie's children and that you were the major issue for her in getting back guardianship of the children.  I infer that was because of these charges.  At Question 223 to 226 you made it clear that you would much rather sacrifice yourself so that Lyla could get the kids back.

28Up until this point in the record of interview, although you had declared your love for Sharon you had vehemently denied any sexual penetration of her.  However, at p57 of the transcript of the record of interview the police moved to discuss messaging between yourself and Sharon, either SMS messages, messages on Facebook and Snapchat messages.

29When you were confronted with the many text messages that had passed between you and Sharon you made a number of admissions to police in your record of interview.  It was these admissions and the clear inferences that could be drawn from the many messages that founded the prosecution case in Charges 1 to 3 and 5 to 8.  The SMS messages and the Facebook and Snapchat messages are numerous and the jury could have little doubt after reading them that the prosecution had proven its case on each charge beyond reasonable doubt.  The relevant exhibits are Exhibits D, G, K, L, and M.

30Charge 1 was founded on the evidence in your record of interview at
Question 677, 688 and 777 where you said you rubbed Sharon's clitoris with your fingers.

31Charge 2 was founded on your admissions at Question 773 and 775 where you admitted licking Sharon's vagina with your tongue.

32Charge 3 relied upon what you told police at Question 34 to 38 and Question 624 and what Sharon had said in the VARE at Questions 213, 369 and 370.

33Charge 4 relied upon what Sharon had said in her VARE at Question 175,
182-200, 222 -250 and 345.  It also relied upon what you told police in your record of interview at Questions 39-40, 68-74, 153-165, 171-175, 178-185, 188-190, 193, 396-426, Questions 470-472, Question 475-477 and Questions 915 and 916.

34Charges 5 and 6 are related to the one incident where you and Sharon engaged in sexual penetration with you putting your tongue in her vagina, whilst at the same time your penis penetrated her mouth.  This is referred to in the record of interview as a '69er'.  This happened on two occasions whilst you and Sharon were living together in the motor home at a Caravan Park between 3 April 2020 and 13 April 2020.  The second occasion is Charges 7 and 8.  In your record of interview you admitted at Question 896 'The 69er did happen'.  Also at Questions 901-903 and 906-908 and Question 912-913.

35Further, at this time there were a number of salacious messages exchanged between you and Sharon over Snapchat where you used the name 'Panda'.  From what you said in those messages the jury would have little difficulty inferring that you had been sexually penetrating Sharon in the various ways alleged in the charges.  Exhibits G and L.

36When police arrested you they searched your motor home and seized a number of electronic devices.  They also seized your Nikon camera and matching camera case where they found an SD card which contained a number of images of Sharon.  The evidence from the informant was that these had clearly been taken at the time when Sharon was living with you in the motor home.  The background depicted in the photographs showed this to have been the case.

37The informant described the photos the subject of Charge 9 as follows. 
At transcript 106-107.

Question:  'What do you say about the images that you saw?'  Answer:  'The images.  There were six images of the complainant's face in a state of undress, there were a number of images of her covered in bedding and there were images of her with her breasts revealed, an image of her breasts and vagina revealed and then there were two photos of a closeup closely taken of a vagina'.

38The informant gave evidence the photos were category 2 child abuse material depicting a child's genitalia but not performing any sexual act.

39You gave evidence.  You denied the acts of sexual penetration alleged in each of the charges.  Notwithstanding the admissions that you had made in your record of interview when confronted with the text and Snapchat messages, you gave evidence you had lied to the police when interviewed so that your wife Lyla could regain guardianship of Debbie's children.

40You gave this evidence at transcript 134.

Question:  'All right.  When you commenced the record of interview, what were your feelings about your family and your wife?'  Answer:  'All I wanted to do is take myself out of the equation so that Lyla could have a chance to get the kids back'.  Question:  'What was your view on where you wanted the children to live?'  Answer:  'I wanted the children to be with their grandmother'.  Question:  'Why was that, Sir?'  Answer:  'Because they were happy to go back to their mother because their mother was living with a registered sex offender'.  Question:  'So what course of action did you decide to embark upon to ensure that to help the children get back with their grandma?'  Answer:  'I wanted to take myself out of the equation completely.  I wanted to make the statement bad enough so that Lyla would hate me that much that she'd walk away from me, which would give her a chance to get the children back'.

Question:  'And that's because you realised you were in a spot of difficulty with the allegations?'  Answer:  'Yes, that's correct'.  Question:  'All right.  Now, some of the allegations or many of the admissions that the Crown say are admissions you now say are false?'  Answer:  'Correct'..  Question:  'Why do you think that was the best way to go?'  Answer:  'I just thought if I get arrested, I get put in prison, I had eventually planned of taking my own life, to completely end it'.

41I am not surprised that the jury rejected your evidence.  In my opinion the jury were entitled to regard your evidence that you deliberately lied to the  police in making admissions as sheer nonsense.  I note that you repeated this nonsense to
Ms Cokorilo who assessed you after your conviction.

42You gave evidence you were impotent.  You also gave evidence that you knew nothing about the Snapchat messages received on Sharon's device.  The jury would have had little doubt but to reject this evidence.  The content and the timing of the messages created an overwhelming inference that you were the person who used the name 'Panda'.

43These charges extend over about nine months.  They are serious examples of what is a serious offence of incest.  You were aged 63 and Sharon was aged 17.  Sharon was above the age of 16 and related to you by your marriage but not by blood, but you ought to have known better than to have allowed your relationship with Sharon, as her grandfather by marriage, to become sexual.  Indeed, you recognised what you were doing was completely wrong and encouraged Sharon to cover it up.  You may have found yourself under a degree of stress because of the position you and your wife Lyla found yourselves in, having to care for
six young people at your age when you both appear to have been moving towards retirement.  But that does not excuse your offending.

44Your offending was a gross breach of trust both of Sharon and to Lyla.  You acknowledged as much in your record of interview at Questions and
Answers 931-934.  You and Lyla knew that Sharon had come from a family background where Sharon and her siblings lacked a father figure.  You became that person, especially in Sharon's life, yet you could not resist the temptation offered by Sharon, as a young and vulnerable person, to satisfy your own sexual appetite.

45The photos that you took of Sharon, the subject of Charge 9, whilst obviously asleep depicting her naked, or part naked, and focusing on her genitalia in some, bespeak a man in his 60s unable to resist the sexual attraction of a 17 year old woman.  That is the action of a man totally focused on his own sexual desires.  In my judgement your moral culpability for this offending is high.

46When it became clear to your wife that you and Sharon were involved sexually, and she accused you of this, you encouraged Sharon to deny and cover up your conduct.  This is especially so after the police became involved.  Again this is reflected in the messaging passing between you and Sharon.  You have shown no remorse.

47Incest is a crime that strikes directly at the concept of a family and almost always leads to the destruction of the family.  That is why it is such a serious offence and why the parliament has provided for such a high maximum penalty.  This case directly highlights the gravity of this kind of offending referred to by
President Winneke in R v Wakime [1997] 1 VR 242 at p244 where His Honour said:

As this court has repeatedly pointed out, incest is an abhorrent crime.  His Honour correctly recognised the crime's capacity to erode decent family life and the trust and confidence of its victims.  This court has said that it ought not turn its back on the tide of community anger and resentment towards crimes which involve the despoliation of children.  As the court has indicated in the past, if fathers wish to claim guardianship rights over their children, they have an overriding responsibility to assume their obligations to protect, inter alia, the moral welfare of those children.

Incest simply undermines the role of guardianship and destroys the entire concept of family unity, and that is why this court in particular, is continually reminding itself and other courts that incest ought to attract condign punishment.  His Honour correctly recognised, in passing his sentence, the odious nature of the offences.

48In sentencing for these crimes I must have proper regard for the sentencing principles of deterrence, both general and specific, denunciation, protection of children, just punishment and your prospects for rehabilitation.  I must also have full regard for the facts and circumstances personal to you, especially your age and state of physical and mental health. 

49Further, having regard to the number of charges that you have been convicted of I must have regard to totality in sentencing.  In passing sentence I have endeavoured to apply these principles whilst keeping in mind in relation to
Charges 1 to 8 the sign post of the standard sentence of 10 years for each of those offences.  In my opinion, your offending is in the upper mid-range for this kind of offending.

50I turn to some matters personal to you.  Your counsel Mr Davis filed a helpful outline of his submissions on your behalf in writing which I marked as Exhibit 1 on your plea.  I also received a psychological report from Psychologist,
Sandra Cokorilo dated 10 July 2022 which I marked as Exhibit 2 on the plea.

51Not long after your marriage to Lyla you and she purchased an old bus which you worked on to convert to a mobile home.  You both intended to spend time travelling around Australia in the mobile home.  You commenced doing this spending some time travelling around Tasmania.  In 2015 you returned to Victoria to care for Lyla's mother who had been injured in a fall.  You went and lived in the mobile whilst Lyla's mother, who was a witness in the trial, lived in a caravan nearby.

52After Debbie's six children came to live with you and Lyla the family moved to a house nearby and then to a larger more suitable home in eastern Victoria.  Understandably, these moves, and having to care for six children, dramatically changed the family dynamics and strained your finances.  I was told and accept that initially the expanded family worked well but problems arose when one of Lyla's grandson's, started to misbehave in a sometimes violent way including assaulting his grandmother.  He was placed in separate care and the family ceased to function as a proper family and this is when the offending occurred.

53I was told and accept this was your third marriage.  You have three children now aged 38, 37 and 22 from previous relationships.  You had worked hard all of your life initially in the Australian Defence Force and later as a truck driver for some
37 years.  You have received support in recent years for a back injury and psychological treatment.

54You have no prior convictions and this offending aside, you have otherwise led an unblemished life.  I was told and accept that you and your wife Lyla have repaired your relationship and you enjoy her continued support.  You described yourself to
Ms Cokorilo as a 'loner' with no friends.

55You generally have kept good health but carry some work related injuries into your latter years.  You have undergone surgery twice for a back related injury resulting in spinal fusion.  You were pensioned out of the Australian Defence Force as a TPI pensioner.  I was told and accept that you await cortisone injection for a neck related injury that has been put off because of your imprisonment.

56You told Ms Cokorilo you were diagnosed as suffering from PTSD on remand.  This arose from the fact of these convictions and the consequent imprisonment.

57Ms Cokorilo assessed you via video conference on 22 June 2022.  She opined you are presently suffering from a major depressive disorder with thoughts of suicide and self-harm.  You also suffer from generalised anxiety disorder at a moderate to severe level.  She thought that your symptoms were present over the offending period and remained at the date of assessment.  Ms Cokorilo opined your major depressive order and anxiety had been present since 2016 because of stresses within the family dynamic.

58She thought you to be a low risk of future offending of this kind.  I generally accept that opinion.  I doubt you will re-offend in this way.  This was opportunistic offending.  I doubt you will ever again have the opportunity to re-offend in this way.  Your prospects for rehabilitation I think are reasonably good.

59Ms Cokorilo thought that because of your psychological state, a term of imprisonment would be more burdensome for you and your psychological conditions may worsen, because of prison.  In these circumstances, Mr Davis submitted on your behalf that limbs 5 and 6 of what are known in the law as Verdins principles should apply in determining the kind and length of sentence that should be imposed.

60I reject Ms Cokorilo's assessment that your major depressive disorder and anxiety were present at the time of offending.  I do have regard to these factors in arriving at my overall effective sentence and in fixing a non-parole period because I accept that you now suffer from these psychological conditions.  At your age, and having regard to the fact that this is your first time in custody, I have no doubt you will find imprisonment difficult.  In passing sentence I have taken all of this into account.

61On your plea, Mr Davis appropriately acknowledged that I must impose a significant sentence being a term of imprisonment.  He asked in all the circumstances that I not impose a crushing sentence and that I fix a non-parole period that sees you serving a lengthy period on parole.  In passing sentence I have taken all of this into account.

62Charges 1 to 8 are each charges of incest.  Although it was not discussed on the plea, I have taken the view I should impose an aggregate sentence on Charges 1 to 8 reflecting your overall offending for the same repeated offence.

63On each of Charges 1 to 8 incest, you are convicted and sentenced to an aggregate sentence of 12 years' imprisonment.

64On Charge 9 producing child abuse material, you are convicted and sentenced to a term of imprisonment of one year.

65I make no orders for accumulation.

66This makes a total effective sentence of 12 years' imprisonment.

67I direct that you serve a minimum term of seven and a half years' imprisonment before being eligible for release on parole.

68I declare there has been 176 days pre-sentence detention of the sentences passed this day and direct that 176 days be reckoned as having been all ready served of the sentences passed this day be entered into the records of the court and deducted administratively.

69It was not disputed that because you have been convicted of these crimes you are now a registrable offender within the meaning of the Sexual Offenders Registration Act 2004 with reporting obligations for life.  Mr Russo, do you have any questions arising out of that?

70MR RUSSO:  No, Your Honour.

71HIS HONOUR:  Mr D'Arcey.

72MR D'ARCY:  No, Your Honour.

73HIS HONOUR:  Very well.  Could you adjourn the court please Wayne?

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