Director of Public Prosecutions v Bellew

[2019] VCC 903

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

AT HORSHAM
CRIMINAL DIVISION

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOEL BELLEW (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Horsham
DATE OF HEARING:	12 June 2019
DATE OF SENTENCE:	19 June 2019
CASE MAY BE CITED AS:	DPP v Bellew
MEDIUM NEUTRAL CITATION:	[2019] VCC 903

REASONS FOR SENTENCE

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Catchwords:             Sentence – Indecent assault of child under 16 – offending occurred between 1987 and 1989 – offender aged 88 years – no criminal history – early guilty plea – frail health – genuine remorse – no risk of re-offending

Sentence:21 months imprisonment wholly suspended for 21 months

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APPEARANCES:	Counsel	Solicitors
For the Director	Ms J. Piggott	Ms K. Westlake
For the Accused	Mr S. Belcher

HIS HONOUR:

1       Joel Bellew,[1] you have pleaded guilty to one count of indecent assault and one count of gross indecency, both with a person under the age of 16 years.  The maximum penalty for indecent assault is five years' imprisonment and for gross indecency two years' imprisonment.

[1] A pseudonym

2       The circumstances of your offending are set out in the summary of prosecution opening dated 22 May 2019 which was Exhibit A.  They are agreed facts. 

3       Your offending occurred between 16 May 1987 and 16 May 1989 when the victim of your offending, your granddaughter, with her mother and brother visited your wife and you at your home at Charlton during school holidays.

4       On three occasions you indecently assaulted your granddaughter when she was alone with you in your bedroom.  On each occasion whilst she was lying on your bed with her lower body exposed you touched her vagina between her labia with your finger.

5       The first time she was aged between three and four years, the second time she was four years old and the third time she was nearly five years old.  These three episodes constitute the conduct charged against you in the rolled up count of indecent assault which is Charge 1.

6       On the third occasion you also exposed your penis to your granddaughter and asked her to touch it.  She did briefly before moving her hand away.  This conduct constitutes the offending charged in the count of gross indecency, Charge 2.

7       After one of the episodes you told your granddaughter, 'This is our little secret', before she left the room.

8       She kept the secret for around 17 years when she told her then boyfriend that her grandfather had sexually abused her.  Around 10 years later in 2017 she told her mother and the reported you to police.

9       On 15 February 2018 your daughter phoned you.  When she confronted you with the allegation you had molested your granddaughter you admitted it and told her you had regretted it ever since.  You admitted you touched your granddaughter more than you should have.  You were vague about the details but said, among other things, 'I've thought about it many times since.  I'm sorry it happened'.

10      Next day you posted a letter to your granddaughter.  In the letter you wrote:

'I must apologise from my heart for the way I treated you years ago.  I did not realise the effect all my inappropriate actions have had on you over the years as well as your mum, who is your wife, and other family members.'

11      You also wrote to your daughter informed her you had written to the victim with your apology and you apologised to your daughter as well.

12      You sent a third letter to your son and his family acknowledging your whole family had been effected and disappointed and you apologised to them too.

13      You were charged with these offences on 31 December 2018 and you pleaded guilty at the committal mention which was the earliest opportunity.

14      The victim read her victim impact statement which was Exhibit C to the court.  Intelligently and articulately she described the devastating harm you caused her.  She felt uncomfortable and scared when you molested her and has carried feelings of shame, anger, confusion and resentment for her whole life.  The trust you betrayed has impacted many facets of her life, eroding her self esteem, damaging her relationships with family and partners and compromising her career advancement.  She has suffered flashbacks, nightmares and suicidal thoughts.  She has been treated intensively for anxiety and depression.

15      Her psychologist, who has seen her 56 times since April 2015, stated her mention health is fragile and although through hard work she has made meaningful progress your granddaughter will likely continue to experience difficult emotions and beliefs as a result of your abuse of her.

16      I turn to your personal circumstances.  You are now aged 88 years.  You have no criminal history.  You married in 1955 and your wife, with your sister, supported you in court.  You have three adult children including the victim's mother who, with her husband and the victim's partner, supported the victim in court.  Your conduct has irreparably divided your family.

17      You were born in Donald and worked the family farm until you suffered a stroke in 1996.  During your working life you were otherwise a good husband and father and an actively contributing member to your local community.  In that regard I received a number of character references which are Exhibit 7 on the plea.

18      The stroke left you with right sided weakness and muscle spasticity as detailed in the report of your treating general practitioner, Dr Rachinsky, which was Exhibit 3.  Your speech in impaired, you are blind in your right eye and you suffer from diabetes, heart disease and chronic kidney disease.  You are unable to live independently and are cared for by your wife.

19      A forensic psychologist, Mr Ian Joblin, examined you on 21 February 2019.  His report is Exhibit 2.  You told him at the time of your offending you were totally unaware of the potential impact on your granddaughter but you are fully aware now.

20      Mr Joblin was of the opinion that while your offending was paedophilic it is not appropriate to diagnose you as a paedophile.  Relevantly he noted there had been no offending prior to or since these offences and, as your wife has confirmed, you have maintained a positive relationship with her throughout the 64 years of your marriage.

21      Mr Joblin said you are very aware of the serious nature of these offences and do not minimise them and that you are remorseful.  Your letters of apology posted the day after your daughter confronted you and your more recent letters to the victim Exhibit 5, her mother Exhibit 6 and the court Exhibit 7 confirm it.

22      I accept Mr Joblin's opinions.  He also concluded in his report there is a reasonably firm basis to consider an optimistic prognosis in terms of an absence of any further such offending.  Given Mr Joblin's psychological opinions and your frail health I accept you present no risk of reoffending.

23      

In written, which were Exhibit 1, and oral submissions your lawyer,

Mr Belcher, accepted only terms of imprisonment are appropriate for this serious offending.  However, he submitted taking into account the following mitigating factors. 

24      Firstly, your plea of guilty made at the earliest opportunity. 

25      Secondly, your genuine remorse. 

26      Thirdly, the absence of any other offending prior to or since this offending. 

27      Fourthly, your positive good character evidence by your community contributions and fifthly, your old age and frail health.  I should wholly suspend the sentences of imprisonment I impose.

28      Ms Piggott, on behalf of the prosecution, submitted the very young age of the victim at the time you molested her aggravates the seriousness of your offending and, your age notwithstanding, just punishment and general deterrence are primary sentencing considerations. 

29      However she conceded, properly in my view, taking into account your old age, your ill health and there is no other known offending it would be open to me to impose terms of imprisonment not to be served immediately.

30      Mr Bellew, I accept incarceration will be extremely burdensome for you because you are elderly and frail.  I also accept, to the extent you have no other convictions, that your marriage has endured for so long and you have made positive contributions to your community throughout your life, that your offending, committed some 30 years ago, might be seen as an aberration.  I also accept your remorse is genuine and profound.

31      I have had regard to the sentencing principles set out in The Queen v RLP [2009] VSCA 271 at paragraphs 34 to 39 and the observations of the Court of Appeal in James Henry Scannnell v The Queen [2014] VSCA 330 at paragraphs 40 to 43, relevant as they are to the sentencing of historical sex offences.

32      Mr Bellew, your offending was serious and if committed more recently would have warranted a significant period of actual incarceration.  However, in the particular circumstances of your case I have decided a wholly suspended term of imprisonment will meet all relevant sentencing objectives including just punishment and general deterrence.

33      On the charge of indecent assault you are convicted and sentenced to 18 months' imprisonment.  On the charge of gross indecency you are convicted and sentenced to a term of nine months' imprisonment.  I order three months of this sentence be served cumulatively on the sentence imposed on Charge 1.  The totally effective sentence is 21 months' imprisonment which is to be wholly suspended for 21 months.

34 Pursuant s.6AAA of the Sentencing Act but for your guilty plea I would have imposed a total effective sentence of two years six months, one year and six months of which I would have suspended for one year and six months.

35      An application has been made for the taking of a forensic sample.  I refuse that application because, due to your old age and ill health, I am not satisfied that it is in the public interest to do so. 

36      Mr Bellew, you may have seat.

37      The two offences for which you have now been sentenced are class 2 offences under the Sex Offenders Registration Act.  The effect of that is that under the Act you are now a registrable offender and must comply with the reporting conditions of part 3 of the Act.  The reporting period is 15 years.  You must report your personal details to Victoria Police within seven days and you have an ongoing obligation to report your personal details to Victoria Police each year thereafter and to report any change of your personal details during that time.  It is an offence punishable by a term of imprisonment to fail, without reasonable excuse, to comply with your reporting obligations.

38      Shortly, my associate, Ms Phillips, will give you a written notice of your reporting obligations and the consequences that may arise if you fail to comply with these obligations.  When she gives you that notice she will ask you to sign an acknowledgement that you have received it.

39      

Thanks Ms Phillips.  Thank you, Mr Bellew.  You may be re-seated. 

Ms Piggott, are there any matters arising?

MS PIGGOTT:  Nothing else, Your Honour, thank you.

HIS HONOUR:  All right.  Thank you.  Mr Belcher?

MR BELCHER:  Nothing, thank you, Your Honour.

HIS HONOUR:  All right.  Thank you for your assistance.  Just excuse me a moment.  Thank you.  Adjourn the court please.

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