Director of Public Prosecutions v Bernard (a pseudonym)
[2023] VCC 254
•23 February 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LENNON BERNARD (a pseudonym) |
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JUDGE: | HER HONOUR JUDGE SYME |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 February 2023 |
DATE OF SENTENCE: | 23 February 2023 |
CASE MAY BE CITED AS: | DPP v Bernard (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2023] VCC 254 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Unlawfully/Indecently Assault a Woman – Historic Sex Offences – Potential Autism Spectrum Disorder – Emotional deficits - Persistent denial of offending - Minimisation of offending - Claims of faulty memory notwithstanding detailed instructions to counsel on numerous matters for cross-examination – No remorse – Age and vulnerability in prison – Delay
Legislation Cited: Sentencing Act 1991 (Vic) & Sex Offenders Registration Act 2004 (Vic).
Cases Cited: R v Verdins & Ors [2007] VSCA 102.
Sentence: 4 years and 6 months imprisonment with a non-parole period of 2 years and 9 months imprisonment. Sex Offender Registration – 15 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J. Fallar | Office of Public Prosecutions |
For the Accused | Dr M. Fitzgerald | Doogue + George Criminal Lawyers |
HER HONOUR:
1Lennon Bernard,[1] you have been found guilty of four counts of unlawfully or indecently assaulting a woman. On Charge 1, in a northern suburb[2] in Victoria, between 1 January 1973 and 31 December 1973, you unlawfully and indecently assaulted the complainant named in the indictment; a girl under the age of 16 years. The particulars alleged and found to be proven concern the digital penetration of the complainant's vagina.
[1] A pseudonym.
[2] A pseudonym.
2On Charge 2, in the same northern suburb in Victoria, between 1 January 1973 and 31 December 1973, on an occasion other than that referred to in Charge 1, you unlawfully and indecently assaulted the same complainant - a girl under the age of 16 years. The particulars concern placing the complainant's hand on your exposed penis and instructing her to masturbate you.
3On Charge 3, in a second northern suburb[3] in Victoria, between 1 January 1975 and 31 December 1975, you unlawfully and indecently assaulted the same complainant, being a girl under the age of 16 years. The particulars involve the digital penetration of the complainant's vagina.
[3] A pseudonym.
4Lastly, Charge 4, in the same suburb, between the same dates, on an occasion other than that referred to in Charge 3, you unlawfully and indecently assaulted the same complainant who was a girl under the age of 16 years. The particulars are that you placed the complainant's hand on your exposed penis and instructed her to masturbate you. This will be referred to as ‘the second incident’.
5At the time of the offending, the maximum penalty for each of these offences was five years imprisonment. For subsequent convictions, the maximum penalty was 10 years imprisonment.
6As the charges have been heard together and you have been convicted at the same time, it is not submitted that the second offence provision is enlivened. Therefore, the maximum penalty for all of these offences is five years imprisonment. A consideration of section 6A of the Sentencing Act[4] is relevant, as you will be sentenced as a serious sexual offender on Charges 3 and 4. Sections 6D, E and F are also noted. You will also be required to be registered under the Sex Offender Registration Act for a period of 15 years.
[4]1991 (Vic).
7You have no prior criminal convictions. This is complicated by the fact that the offending occurred about 40 years ago and that you have no convictions for offending after these events. Your lack of convictions will allow you a consideration of leniency in the sentence to be imposed. The facts relevant to the offences are as set out in my reasons for decision, which were handed down on 15 November 2022. Those reasons are lengthy, and for that reason, I do not propose to restate many of the observations stated in those reasons.
Circumstances of offending
8In summary, however, the circumstances of the offending are as follows. In 1973, the complainant was in Year 6, aged 11. You lived in a northern suburb of Melbourne. The detail of what she said occurred included you rubbing her clitoral area to her vagina and inserting your finger into her vagina to a degree. She described the penetration as approximately half a finger’ deep. That is Charge 1. You also took her hand and placed it on the bare skin of your penis and rubbed it backwards and forwards. She recalled your actions to be very gentle, rubbing her hand and directing it onto your penis. That is Charge 2.
9She had her eyes closed. You then rubbed your hands over other parts of her body, but she could not recall if this happened simultaneously. She recalls you mumbling in a raspy voice, saying words to the effect of 'that's good' and mumbling that she should rub your penis saying words such as 'like this'.
10The details she recalled about this particular event included that it took place in the bedroom where all three children slept. She said that when the penetration of her vagina and forced touching of your penis occurred, a blanket was not over her. She was wearing a nightie, but no underwear.
11Again, the complainant stated that you rubbed her clitoris and vagina using one or two fingers penetrating, as she said, to the extent of about half a finger. She thought that it went in and out more than ten times and continued, she said, ‘for too long’.
12In relation to the 1975 events, I found that the family then lived in the second northern suburb of Melbourne. The complainant was 13 and in high school. She was awoken by feeling a hand on her breast. She rolled over and put her back to you, indicating, I would have thought, no desire to be assaulted again.
13You gently pulled her shoulder back and rolled her onto her back again. You touched her genitals, rubbed her clitoris down to her vagina and inserted your finger into her vagina. That is Charge 3. She put her legs together to try and stop you. You placed her hand on your penis and manoeuvred it to rub it while making murmuring noises. She said it was gentle. She had her eyes shut. The detail given in her evidence, which I referred to in my reasons, was convincing of the child having had her hand manoeuvred to your bare penis. This is Charge 4.
14This type of offending was frequent within the time frame of the charges. Neither was an isolated incident. No substantive complaint was made until 2020. The reasons for the delay in the complaint are referred to in my reasons for decision. A major reason was your elevation in the church to a higher office and she was concerned about that.
15The matter proceeded as set out in my decision on 15 November 2022. You made some admissions, which amounted to an admission of sexual interest and a willingness to act on that sexual interest over a number of years. Those admissions were made in a pretext call and in a subsequent police interview. You did not ever accept the extent and frequency of the offending, claiming, at times, that you stopped'. The issue in trial was the degree and frequency of the sexual assaults.
Sentencing considerations
16In considering the sentence to be imposed, the primary duty of the court is to assess the objective gravity of the offending. Matters which make the offending more serious are as follows.
17In terms of indecent assault, as it was then defined in the 1970s, the following matters need to be considered - Your actions were at the upper end of the range for such offending. The penetration of the complainant's vagina with your finger and placing her hand on your bare and erect penis are both confronting and at the upper end of the range of physical conduct for the offence charged.
18The offending went on, as the complainant said, for too long. Approximately ten penetrations occurred each time, or, apparently, until you were interrupted by another. The fact that the offending was against your child, a member of your family who trusted you, is a serious aggravating factor. You were her father and had agreed to adopt her some years prior. She feared losing her family if she complained or stopped you. Some of the acts were conducted in a room in which other children apparently slept. This no doubt increased the confusion and the need to keep quiet.
19It is not known if the other children noticed what was happening on a frequent basis or what effect your intrusion may have had on them. The fact that the offending occurred at night when the child was asleep and unable to move away is a serious aggravating factor. The intrusion of these activities on the child who was asleep or awoke to the action no doubt made your actions far more frightening. The fact that the offending occurred over many occasions, that is to say, not isolated, is an aggravating feature.
20The offending was, to some extent, opportunistic. However, the fact that it continued over many occasions and whenever the opportunity presented is evidence of extremely predatory behaviour. The victim tried to get away when she was older, by hiding under the bed or escaping out the window, or, later on, by locking her door. Your continuous behaviour of assaulting the child in her bedroom at night, when she had nowhere else to go and no one to turn to, meant that she had no place of refuge or ability to seek protection. This had serious consequences for her. For the offences charged, they are, I find, above mid-range objective seriousness.
21I have read and heard the victim's impact statement. I have also read a statement from your former wife. Both statements speak of the ongoing horror and consequences for them of your selfish and criminal behaviour over the years. While those reports do not amount to aggravating consequences, they remind the court of the typically devastating consequences of such offending for victims individually and for the community at large. The consequences of this offending are frequently reached beyond one generation.
Personal circumstances
22I now turn to your personal circumstances and background. You have tendered, by consent, a report prepared by forensic psychologist
Carla Ferrari. There is no challenge to her qualifications and experience. She had all relevant documents available to her and conducted psychometric testing and interviews. I found the report to be thorough and well-reasoned.23You are a 76-year-old man, the oldest of three siblings. In your self-report, you related a mostly positive childhood, marred by your father's very poor mental health which was possibly exacerbated by his own war experiences. You recalled one sexually confronting assault when you were in primary school, but do not recall that it affected you. In any event, it appears to be an entirely different sort of confrontation. It seems unrelated to the excuse you gave for these offences. Although you have not ever been diagnosed with mental health conditions, you have reportedly experienced some atypical responses and behaviours over the years.
24The detailed assessment suggests that your presentation over time may point to a persistent depressive disorder throughout your life. This is suggested alongside evidence suggestive of potential autism spectrum disorder. Paragraph 100 of the report describes:
A potential in individuals with ASD in predicting and understanding the appropriateness of their own actions towards others and a difficulty in controlling emotions. As a result, there is a potential for a lack of self-awareness, inflexibility in thinking and a tendency to see the world from a self-centred perspective.
25Paragraph 108 of the report also notes:
Self-regulation issues are clear symptoms of this offender's condition', that is your condition, 'making those symptoms prone to exacerbation under situations of extreme stress or in comorbidity with other mental health issues.
26The psychologist opines that these mood disturbances have impacted your decision making and judgment, resulting in emotional dysregulation which impairs your problem-solving and capacity for healthy information processing. There is no evidence, however, that this presentation had any causative relationship with your offending and subsequent behaviour.
27The observations are noted, although it is also observed that during the course of the offending or shortly after, you reported feelings of guilt and shame as a result of your behaviour which were sufficient for you to seek advice from a psychologist. This suggests that while you knew what you were doing was wrong and seriously so, your self-focused outlook overcame any feeling of guilt or shame fairly readily. Your behaviour continued for at least a two-year period and did not stop until the child was able to lock her door, thus taking responsibility for the offending behaviour when she finally could.
Moral culpability
28In assessing your moral culpability for the circumstances of the offence based on the findings above, I find that although it might be that you did not have a full understanding of the consequences of your offending on your adopted daughter, that does not reduce your moral culpability for your actions. There is an indication, as I have referred to, that you knew your actions were wrong and you reported to the psychologist that it was 'the adrenaline rush of doing something forbidden that you found exciting'. The fact you were sexually aroused is also noted.
Remorse
29Now I turn to the issue of remorse. Counsel submitted that you have demonstrated a 'degree of genuine remorse' (at paragraph 10 of counsel's submissions). He refers to the fact that you made 'far reaching admissions to conduct of which [you] [were] reportedly ashamed'. Counsel was referring to the admissions and inferences he suggested could be drawn from the police interview. It was submitted that your deficits in emotional intelligence and perspective-taking made it difficult for you to develop insight into the impact of these offences. Counsel, in effect, submitted that the limited remorse you show is all that you are capable of.
30In relation to this suggestion that your lack of remorse is related to your deficits in emotional intelligence, I note paragraph 64 of Ms Ferrari's report which refers to this consideration. However, this reference is in the context of your lack of remorse for what you admit to having done to the complainant. Throughout your life, you have not accepted the extreme seriousness of your physical acts with the child. The report finds that you felt relief at 'finally telling the truth' and this is at paragraph 65 of the report.
31However, it is noted that, notwithstanding the finding of the court, you still do not admit these offences. Your counsel suggests that this lack of acceptance and therefore, remorse, may be a function of your faulty memory. I had available to me the police interview and the pretexted call. You minimised your behaviour in every question. I do not accept a faulty memory. It is also submitted that your memory of the events may be faulty due to the passage of time. This last submission was dealt with in my reasons for decision and your claim of a faulty memory, rejected.
32Your memory of many events was sufficiently detailed to give your counsel many topics on which to cross-examine the complainant on her version of events and associated events within that time frame. Your self-report to the psychologist that you maintain your innocence of the very serious nature of the penetrative and forced touching offences is noted. You continue to maintain denial, notwithstanding your presence in court and having listened to the complainant throughout the entirety of her very long testimony. You continue to minimise the seriousness of your offending.
33Your remorse for admitting the context of the offending in light of being discovered in 1973 does not assist you. I further note that you apologised to the complainant sometime after the first offence, in or around 1973, but your offending continued, unabated.
Verdins
34There are some Verdins considerations that need to be taken into account. The Court of Appeal identified six ways that mental impairment, in general, may be relevant to sentencing. It was submitted that limbs five and six are relevant. Limb five refers to the existence of an impairment at the time of sentencing or it is a reasonably foreseeable reoccurrence that may mean a specific sentence may weigh more heavily on an offender than it would otherwise on a person of normal health.
35Limb six is to be considered if there is a serious risk that imprisonment will have a significantly adverse impact on an offender's mental health and if so, it will be a mitigating factor. There is an observation in the psychologist report that is not disputed and that is that imprisonment would weigh more heavily on you. This is maintained with regard to your apparent pre-disposition to persistent depressive symptoms, social difficulties and, specifically, issues in understanding and interpreting the intentions and emotions of others.
36Your mental health presentation may present difficulties for you. It is observed that this unusual - that your unusually potentially autistic presentation may result in a particular vulnerability in a custodial setting. I am referring, in particular, to paragraph 119 of the report. These Verdins principles or considerations may moderate both the minimum term and the head sentence, but they are exceptional and should not be invoked in routine cases.
37They are of some, but relatively slight significance to this sentence. You may be more isolated than some others as a result of your social and mental health difficulties. I ask from defence counsel that permission be given for the prompt release of Ms Ferrari's report to Corrective Services for consideration as part of an intake assessment. Corrections Victoria have an obligation to keep any inmates in custody in a safe place.
38No doubt, on assessment, after taking into account Mr Bernard's age and physical infirmities, he will be placed in a placement with other inmates in such a position, perhaps also considering his other intellectual difficulties. I note that Mr Bernard, you also have some significant physical health issues, however, it is not suggested that Corrective Services cannot deal with those issues. A copy of your health report should also accompany him today.
39In addition to the formal Verdins considerations, I note that you feel a responsibility for your sons, both of whom have mental health difficulties. I accept that you will be concerned about their welfare, however, I have no information to suggest that they will suffer significant hardship as a result of your lack of presence. Therefore, that is a matter that I have no information on which to take into account. You also report being in a relationship with a partner, but you do not reside together. Accordingly, that is not a matter that I can take into account.
40None of the issues raised in the report reduce your moral culpability for the offending to any great degree. You accepted that you had criminally offended against the child by your apology directly to her after the first series of events. Thereafter, you not only continued to offend against her, but continued to enjoy the fruits of your presumed good character for years thereafter. Even your claim of shame and lack of remorse does not assist the court in finding that specific deterrence has been addressed.
Character
41I now turn to your own character. You have no convictions for similar or any other matters. Your partner and your friends from the church, the Douglas’[5], have written glowing accounts of your character. The Douglas’ go insofar as to say that your integrity is beyond reproach and that this event, they say, is classified for them as an ‘error of judgment’. Your two years, at least, of continuous sexual assault of a vulnerable child simply cannot be so classified.
[5] A pseudonym.
42You have enjoyed over 40 years of a claim for your good works, and you have enjoyed the adulation of members of your church and members of the community and your workmates, unworried by the serious offending that you had indulged, and the ruin that you had wrought, on the victims who were your family. In summary then, your prior good character will be of some, but limited assistance to you. I do note the observation that you have contributed through your paid employment to the community and research facilities in general. That is accepted.
43When assessing the risk of further offending, it is noted that these offences were committed about 40 years ago. You were found out at the time of the offending and promised not to do it again. You continued to offend. You convinced yourself that you had not done much wrong. As I noted, you have continued to enjoy the benefit of your good character, untroubled by the wreckage your behaviour wrought on your family. A detailed risk assessment contained in paragraphs 110 to 117 of Ms Ferrari's report observes that you are considered to present a moderate risk of future sexual reoffending, notwithstanding the historical nature of the offences.
44This is not, as submitted by your counsel, a risk of reoffending at the time of offending or a risk excluding the lack of reports of offending over the last 40 years. There is nothing to support the suggestion that your risk of reoffending is now low due to your current living situation in that you have no children living with you. The suggestion that your offending was motivated by your living situation, that is, living with a family, is a baseless and offensive suggestion as is the suggestion that the fault lay with your then wife or your child because you were, as you said on many occasions, sexually attracted to the child. This suggestion moves the responsibility of the offending from you to the victim, as you have apparently done over the past 40 years.
45Under the SRV20V2 protocol which was referred to in paragraph 113 of the psychologist report, the actual risk for sexual violence depends on a combination of factors. Ms Ferrari knew your age and your general health conditions as at the date she made those assessments. It is noted that you used psychological manipulation on the child rather than physical force. There is nothing to support the submission that your risk of reoffending is anything but that which was found by your own psychologist - moderate.
46Recommendations are made for your support in the future, which include a referral to a psychiatrist for further longitudinal diagnostic clarification of your potential ASD symptoms and psychological intervention which may focus on cognitive and behavioural modifications. These will be taken into account when considering the non-parole to parole ratio.
47In relation to the submission that the matter was dealt with efficiently and therefore, you deserve some benefit for that, I accept those submissions. It was submitted that your admissions to, in general terms, low level touching on a few occasions and a sexual interest in the child, reduced the complexity and length of the trial. or that it was a particularly unusual set of circumstances.
48I disagree with this submission. The complainant was subject to detailed and confronting cross-examination on your instructions. I do not propose again to detail the challenges which are noted in my reasons for decision. The question of what actually happened on the two discreet events in question was very much in issue at the trial, as were a large number of surrounding circumstances.
49However, seeking a conclusion by a judge alone trial did, to some extent, assist the administration of justice by allowing the matter to be heard far more efficiently than it might have been with a jury. This will be allowed for, in a general way, in your favour as a facilitation of the course of justice.
Purposes of sentencing
50The purposes of sentencing are as contained in section 5 of the Sentencing Act. For serious sexual offences such as Charges 3 and 4, the protection of the community assumes a greater significance. The observation of a moderate risk of reoffending is noted. In addition, the remaining purposes of sentencing are all relevant to a greater or lesser extent.
51For just punishment, the court must also take into account both the delay and the consequences of offending such as this on the individual and on the community. Denunciation of conduct such as this is a further important consideration and relates to general deterrence.
52In attempting to consider the sentencing practice at the time of your offending, I will use, as a guide, the maximum penalties and the assessments I have set out above of the objective seriousness of the offending. No other submissions were made by either counsel on this point. I note that the maximum penalty for each charge is five years. As I said, Charges 3 and 4 are more serious in that they were offences which were committed after you were found out and promised to stop.
53Each charge is a separate offence and there must be some accumulation. That will be limited as Charges 1 and 2 occurred within the same time frame as each other as did Charges 3 and 4. There will be further accumulation representing the two separate events, the first in 1973, and the second in 1975. I am going to impose the sentence now, so you can stand up if you wish or you can remain seated if it is easier for you to hear remaining seated. It is up to you.
Sentence
54Charge 1, I sentence you to a period of custody of two years. Charge 2, I sentence you to a period of custody of two years. Charge 3, which will be the base sentence, I sentence you to a term of imprisonment of three years and this is the base sentence. Charge 1, the sentence of two years that I have already noted, will be accumulated for a period of twelve months on the base sentence and Charge 2, will be accumulated for a period of three months on the base sentence. Charge 4, I sentence you to a term of imprisonment of three years, which will be accumulated three months on the base.
55To put those sentences in context, Charge 3 is the base sentence, a period of three years, Charge 4 a period of three years, accumulated three months on the base. Charge 1, a sentence of two years, accumulated twelve months on the base and Charge 2, a period of two years accumulated on three months on the base. That is an accumulation total of, eighteen months. Therefore, the total effective sentence will be four years and six months
56I propose to allow a shorter non-parole total term ratio because of your age, your health, the health issues that I have referred to herein and the suggested further investigation of your mental condition as suggested in Ms Ferrari's report. I therefore propose a non-parole period of two years and nine months. I will also require that the Sex Offender Registration Act reporting obligations will last for a period of fifteen years. Lastly, I declare Mr Bernard to be a serious sex offender in respect of Charges 3 and 4. Is there anything else, Madam Prosecutor?
57MS FALLAR: No, Your Honour.
58HER HONOUR: Anything else Dr Fitzgerald?
59DR FITZGERALD: No, nothing to raise, Your Honour.
60HER HONOUR: Very well. Do you want to speak briefly to your client?
61DR FITZGERALD: If I could, Your Honour, ‑ ‑ ‑
62HER HONOUR: Absolutely.
63DR FITZGERALD: ‑ ‑ ‑ I'm very grateful.
64HER HONOUR: It is important that he understands what I have said. There is no pre-sentence detention is there?
65MS FALLAR: That is what I am about to say ‑ ‑ ‑
66HER HONOUR: Yes.
67MS FALLAR: ‑ ‑ ‑ when my learned friend returns, just for over an abundance of caution for the purposes of the transcript, if it can just be noted that there's no pre-sentence detention.
68HER HONOUR: Yes.
69DR FITZGERALD: Thank you for that time, Your Honour.
70HER HONOUR: Thank you Dr Fitzgerald. Just for the record, there is no pre-sentence detention as I understand it?
71DR FITZGERALD: That's correct, Your Honour.
72HER HONOUR: Very well.
73DR FITZGERALD: Yes, reminded to address Your Honour on custody management issues, but I think that they'd be - there is some medications that will be taken into custody, but also the report that Your Honour referred to.
74HER HONOUR: The two reports I think would be very useful for ‑ ‑ ‑
75DR FITZGERALD: Yes.
76HER HONOUR: ‑ ‑ ‑ Corrective Services and I'll ask they get a copy of them forthwith.
77DR FITZGERALD: Thank you, Your Honour.
78MS FALLAR: As the court pleases.
79HER HONOUR: Very well, very good. We'll adjourn now.
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