Director of Public Prosecutions v Bishop (a pseudonym)
[2022] VCC 1823
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BEN BISHOP (A PSEUDONYM)[1] |
[1]To ensure there is no possibility of identification of the victim, this judgement has been anonymised by the adoption of pseudonyms.
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| JUDGE: | HIS HONOUR JUDGE DOYLE |
| WHERE HELD: | Bendigo |
| DATE OF HEARING: | 21 October 2022 |
| DATE OF SENTENCE: | 25 October 2022 |
| CASE MAY BE CITED AS: | DPP v Bishop (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2022] VCC 1823 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW - SENTENCE
Catchwords: Plea of guilty – 3 charges of sexual penetration of a stepchild (course of conduct) – incest – Standard sentencing – Serious sexual offender
Legislation Cited: Crimes Act 1958, Sentencing Act 1991
Cases Cited:R v Tullipan (a pseudonym) [2021] VSCA; R v Verdins & Ors [2007] VSCA 102; R v Walsh (a pseudonym) [2018] VSCA 172; R v Worboyes [2021] VSCA 169
Sentence:13 years imprisonment with a non-parole period of 8 years and 4 months.
Section 6AAA: 17 years and 2 months imprisonment with a minimum non-parole period of 13 years
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr E Dober (Plea) Ms K Parnham (Sentence) | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr Z Menon | Victoria Legal Aid |
HIS HONOUR:
1
Ben Bishop[2], you have pleaded guilty to three charges of sexual penetration of a
stepchild, each of which is charged as a course of conduct. The maximum penalty is 25 years imprisonment.
[2] A pseudonym
2You were born in December 1976, and you are now aged 45. You were 44 years old at the time of the offending and you were living with your then fiancé, Ms Maeve McDonald[3]. Ms McDonald is the mother of the victim Jai McDonald[4]. He was your stepchild as defined in the offence section, s 50D(1) of the Crimes Act. He was born in June 2012, and he is now nine years old. He was approximately two years old when your relationship with Ms McDonald started and around five years old when you moved in with Ms McDonald. He was eight years old when the offending commenced.
[3] A pseudonym
[4] A pseudonym
3You and Ms McDonald have a daughter together.
4The offences are course of conduct charges relating to three types of penetrative sexual conduct which occurred in the period between December 2020 and October 2021. Charge 1 covers multiple occasions where you inserted your finger or fingers into the victim's anus; Charge 2 relates to multiple occasions where you penetrated the victim's anus with your penis; and Charge 3 covers multiple occasions of oral penetration of the victim’s penis.
Circumstances of the offending
5Between December 2020 until around July 2021, the victim saw a tutor every week. You collected the victim at the end of his lesson and took him home on a bus.
6The first incident of sexual offending occurred in early 2021 when you picked him up from tutoring and took him to a nearby public toilet next to Coles in Little Bridge Street, Ballarat. Inside the locked cubicle, you inserted your finger into the victim's anus. Afterwards, you and the victim walked to the bus station.
7This offending continued in the following weeks, where you took the victim to the same public toilets after tutoring and inserted your finger into his anus. The victim described this as happening every week.
8After about a month of this, and on an occasion where you had collected him from his tutoring lesson, you again took him to the public toilets near Coles and again inserted your finger into his anus. Then, you told the victim to bend over and touch his toes and you pulled his pants down. You penetrated his anus with your penis and ejaculated on him.
9The next week at the public toilets you inserted two fingers into his anus. Then, you sat on the toilet in the cubicle and, with the victim sitting on your lap, you inserted your penis into his anus. You said to him, ‘Don't tell anyone or you won't see me in a long time’.
10The victim described this same offending – namely digital-anal and penile-anal penetrations – as occurring each week after his tutoring.
11From approximately early May until mid-July 2021, you took the victim to a different public toilet block, this time on Camp Street, Ballarat Central in the Federation University campus.
12On about five occasions you took the victim to these toilets after inserting your fingers into his anus and you performed oral sex on him, placing his penis into your mouth and sucking on it. After the oral sex you anally penetrated the victim.
13Around June/July 2021, the victim stopped attending tutoring. You then assaulted the victim at the family home in Sebastopol.
14Between around June 2021 and October 2021, you took the victim into a shed whilst Ms McDonald was out shopping for groceries. You inserted two fingers into his anus and then inserted your penis into his anus. He estimated this happened ‘maybe 25’ times.
15You also sexually assaulted him in his bedroom and in the loungeroom of the house. The first occasion in bedroom occurred around July 2021. The victim estimated you sexually assaulted him in the bedroom approximately every two weeks.
16In early July 2021, you assaulted him in the loungeroom. He said this took place on an occasion after he had received a grading for his karate. You shut the curtains and put a towel down on the couch. You inserted your fingers into his anus and then inserted your penis into his anus.
17On 18 October 2021, between approximately 6:30pm and 7:00pm, he was lying on the loungeroom floor playing on his iPad. Ms McDonald was showering your daughter. You approached him, pulled his pants down and performed oral sex on him on the loungeroom floor.
18Ms McDonald walked into the loungeroom and saw his penis in your mouth. She saw your head moving up and down on the victim's penis whilst you fondled it with your hand. She told you to stop.
19You said nothing but moved away from him.
20The victim told police that you sexually assaulted him in the loungeroom approximately five separate times, and in his bedroom around ten times. Each time, you said to him, 'Don't tell anyone'. You also used lubricant on your fingers and on his anus before inserting your fingers or your penis. The victim said you stopped ‘when the white stuff came out’.
21Ms McDonald obtained an Intervention Order against you on that day, being 18 October 2021. She said she tried not to react so that the victim would not feel like he had done something wrong. She asked you about the offending and you told her it had been happening for ‘about two months’ and it had happened ‘not many’ times. You said, ‘I know I've done wrong; I need help. I know I've done the wrong thing’.
22You tried to excuse your behaviour by saying you had the victim’s consent and that you had told the victim that you could get into a lot of trouble for doing this and that if the victim said ‘no’ you would not do it.
23Ms McDonald told you to contact a helpline. She heard you tell the person on the phone that you had been abusing your stepson. This resulted in a notification to the Police.
24On 19 October 2021 the victim made a VARE in which he described the offending. You were arrested and interviewed on the same day, and you made the following admissions:
·You admitted taking advantage of the victim.
·You admitted to masturbating the victim and performing oral sex on him.
·You admitted to performing oral sex on him on the previous night.
·You said you had sexually assaulted him approximately ‘half a dozen’ times, the first time about two months earlier.
·You said it happened whenever you got the opportunity, and you were alone with him.
·You said you could recall sexually assaulting the victim in the bedroom and the loungeroom, but not in any other location. You said the shed was more than likely.
·You said you possibly went to the public toilets with the victim after the tutoring lessons, but you had no recollection of penetrating the victim with his fingers or your penis.
25When asked for your reason for the offending, you said, ‘I don't have a reason. I’m disgusted in myself.’ You also said, ‘I don't know what's wrong with me’, and that you should never have touched the victim.
26Notwithstanding that you minimised to an extent your conduct, I do accept that what you said in the interview and the shame you expressed to psychologist Mr Candlish indicates remorse for the offending, as does your guilty plea and I will return to the effect of that.
Victim impact
27Five victim impact statements were read in court and tendered on the plea.
28The victim himself says his life has changed and he does not like the way he feels. He describes experiencing uncontrollable anger and feeling sad and embarrassed. He said that concentrating at school has become difficult and he has nightmares because of what you did.
29Ms McDonald says in her statement that your offending will affect the family for the rest of their days. She says she now suffers anxiety, depression and PTSD. She details the impact on your daughter, who does not understand why you are no longer around. She no longer sees her friends to avoid having to tell people what you did. Ms McDonald says she cannot sleep properly, and this has impacted her work. She described the financial burden of supporting the family without you.
30I have also had regard to the statements of Ms McDonald’s parents, the victim’s grandparents and her sister, the victim’s aunt. They say they are unable to understand how someone could do what you did. They describe feelings of guilt, shame and distress that they feel since coming to know of your crimes. The victim’s family have stepped in to support Ms McDonald while she is forced to take the role of the sole provider. They all say that you have devasted the family.
31It is clear from these victim impact statements that the consequences of your offending have been very substantial, not just to the victim, but to his mother, her parents and her sister as well. The impact of your crimes on the victim and the wider family is a significant matter in sentencing in this case. To the extent that they feel some guilt, they have nothing to feel guilty about. The responsibility for these crimes is entirely yours.
Personal circumstances
32Your personal circumstances are outlined in the psychological report of Mr Simon Candlish dated 30 May 2022 and in the defence written submissions.
33You are now 45 years old. You have two older brothers and one older sister. Your father was a mechanic. You mother stayed at home and looked after you and your siblings.
34Your parents separated around the time you started high school. You told Mr Candlish you cannot remember much of your childhood, other than that your father was always working and did not show a great deal of interest in you. You said your older brother bullied you, sometimes physically. You do not claim to have been sexually abused yourself. You do not have any contact with your siblings which you attribute to past family conflict and their knowledge of this offending.
35You left school after Year 8. You describe yourself as a complete failure academically. You were employed in basic labouring in various jobs until your twenties when you started working in earthmoving businesses operating heavy machinery. You were most recently employed with a transport manufacturing company. You lost your job over a breach of COVID rules. You were not working in the period when this offending occurred.
36You have had two significant relationships in your adult life. You had three children in the first relationship. You have no contact with any of those children. The second relationship was with Ms McDonald.
Psychological factors
37In addition to the psychological report of Mr Candlish, a neuropsychological report was tendered from Mr Martin Jackson.
38Mr Jackson administered a range of tests which indicates that your full-scale IQ is 79, in the borderline range. You have low average verbal intellectual abilities. The reports are consistent with what you say about having very limited academic ability at school. You do not have an acquired brain injury.
39Mr Candlish diagnosed you as having symptoms consistent with a persistent depressive disorder of moderate severity. He said you are likely to be plagued by thoughts of worthlessness, hopelessness, and personal failure. You described having suicidal thoughts. Mr Candlish describes you as a socially isolated individual with few interpersonal relationships.
40Mr Menon submitted that principal 5 of Verdins[5] applies because these psychological conditions as set out in the report of Mr Candlish will increase the burden of your period of imprisonment. The prosecution accepted that principle 5 applies given your depressive disorder.
[5]R v Verdins & Ors [2007] VSCA 102
41As a separate factor Mr Menon relied on your social isolation combined with your limited cognitive skills as also increasing the burden of your imprisonment. You have been assaulted in prison and have engaged in self-harm. It seems to me the lengthy sentence that I must impose will weigh heavily on you and you are likely to be an isolated person within the prison. I take all these matters into account, as increasing the hardship of the custodial sentence on you.
42I have taken the matters into account separately, that is principle 5 of Verdins, and the effect of your social isolation.
Gravity
43Sexual penetration of a stepchild is an Incest offence. The seriousness of such an offence is reflected in the maximum penalty of 25 years imprisonment and in the standard sentence of 10 years imprisonment. The community rightly regards such offending as abhorrent. It is obvious to observe this offending was extremely serious. It was sustained, persistent and repugnant. You disregarded completely your parental responsibilities and the trust placed in you by Ms McDonald and the victim. You had a duty to care for the victim who was just 8 years old when you committed these offences. Instead, you placed your own aberrant needs for sexual gratification ahead of your duty to nurture and care for your stepson.
44In Walsh (a pseudonym)[6] Maxwell P and McLeish JA said of such offences:
Incest involving a child is an appalling crime. It involves a breach of trust of the most fundamental kind, and an inexplicable abdication of parental responsibility. Just as seriously, it involves a cynical exploitation by the parent of the opportunity for sexual contact which being in that position of trust presents.[7]
[6] [2018] VSCA 172.
[7] At paragraph 1-2
45The charges here cover a range of penetrative acts occurring whenever you got the chance in multiple locations, including in the victim’s bedroom. The victim was not safe in his own home or his bedroom.
46These are course of conduct charges, and I must impose sentences within the maximum penalty for the charged offence, but which reflect the totality of your conduct for each charge.
47In the case of Tullipan (a pseudonym)[8], the Court of Appeal said:
A sentence for a single instance of incest cannot, of course, be usefully compared to a sentence for a course of conduct charge. But, precisely because the two are different, the former can provide some guidance by way of contrast regarding the available range for the latter. The example the Director gave was the sentence of 7 years and 6 months’ imprisonment imposed in Director of Public Prosecutions v Dalgliesh [No 2], for a ‘single incident’ count of incest which resulted in pregnancy. As the Director correctly submitted, offending like the present, involving multiple acts of incest over a long period, should be viewed as being considerably more serious than a single act of incest, and that difference in seriousness should be reflected in appropriate sentencing differentials.[9]
[8] [2021] VSCA 191
[9]At paragraph 50
48Here in each category, there were multiple acts of penetration over an extended period stopping only because you were caught committing an act of oral sex in a particularly brazen incident where you abused the victim while Ms McDonald was in another area of the house occupied with your daughter.
49I accept the prosecution submission that the ongoing nature of the offending rules out pure opportunism. The offending was calculated. Additionally, you secured the victim’s silence using psychological manipulation saying to him, ‘Don’t tell anyone or you won’t see me in a long time’.
50You did not use a condom, potentially exposing the victim to the risk of a sexually transmitted disease which is generally considered an aggravating factor, although there is no evidence concerning the existence of that risk in this case.
51The law presumes enduring psychological and physical harm to children subjected to premature sexual activity. It is apparent from the victim impact statement of the victim, which I have summarised, that he has already suffered harm. Furthermore, as the prosecutor pointed out, the damage you have caused has reverberated around the wider family as set out eloquently in Ms McDonald's victim impact statement and those of her parents and siblings. Your selfish criminal acts have caused financial hardship to your own family which is likely to be ongoing. You have caused great damage to your former partner, the victim, and to your own daughter who will have to grow up without her father. By acting in the way you did, you abandoned the role you occupied in the victim’s life, and you have effectively abandoned your own daughter as well.
52The prosecution submitted that your overall offending should be characterised as high-end offending. Such classifications are difficult given the variety of circumstances and aggravating factors such offending can involve but given the age of the victim, the duration of this offending, the fact that the charges are course of conduct charges and the other serious features of your offending, I accept that your offending is above the mid-range.
53Incest is a crime of high culpability. You knew what you were doing was wrong. Your moral culpability for this offending is substantial.
Guilty plea
54You pleaded guilty at the third committal mention in this matter, which I accept was the earliest opportunity in the circumstances.
55You have spared the witnesses, particularly the victim, the ordeal of having to relive these events while giving evidence. You have saved the court the resources involved in running a trial. You have pleaded guilty at a time when the court faces a backlog of trials resulting from the suspension of jury trials during the pandemic. The increased utilitarian value of a guilty plea in the current environment was recognised in the decision of Worboyes[10] and I have applied the principles outlined in that case.
[10] [2021] VSCA 169
56Your counsel, Mr Menon, submitted, and I accept, your early plea has also spared the victim and many family members from facing further delay to reach finality in these proceedings.
57Your plea indicates remorse and a willingness to facilitate the course of justice.
58You are entitled to a significant and substantial sentencing discount because you have pleaded guilty in these matters.
Custody
59You have been in custody since your arrest. I take into account that the time you have spent on remand waiting for this matter to be finalised, has been served under the restricted conditions that have prevailed in prisons in response to the pandemic. Visits for a time were suspended and programs have been restricted, lockdowns were prevalent. This has increased the burden of the period you have spent in prison and could potentially have some continuing impact on the sentence you will be required to serve.
Prospects of rehabilitation
60Mr Candlish said in his report that you meet the criteria for a paedophilic disorder. You struggled to explain your behaviour to Mr Candlish. You were ambivalent when asked about your understanding of the harm caused to children by sexual offending. As I understand his report, his opinion is that your risk of committing further sexual offences is moderate. Mr Menon submitted that although you have limited insight into your offending, I should view this in the context of your limited verbal abilities. He emphasised your guilty plea, the absence of prior convictions, expressions of shame about what you did and acceptance of the need for treatment as factors supporting a reasonably favourable view of your prospects of rehabilitation. He also made the point that the sentence here will be a long one and with treatment the underlying causes of your offending may recede.
61It is not possible to assess what your prospects of rehabilitation will be in the future in the context of the lengthy sentence I will impose in this case. There are many uncertainties in such an assessment. All I can really conclude is that if you develop insight via treatment, you have reasonable prospects of avoiding further offences. I accept also there was a situational element to the offences. I do not view you as predatory offender likely to seek out victims for the purpose of sexual offending or as an offender with psychological characteristics that impede your ability to participate in treatment. You seem to acknowledge the aberrant nature of your conduct although it cannot be said that you have a full or meaningful understanding of its impact.
62Obviously, given the gravity of the offending here the need to facilitate your rehabilitation and ultimate reintegration into the community will be via a period of supervision on parole in this case.
Standard sentence
63The standard sentence for sexual penetration of stepchild is 10 years. The standard sentence operates as a yardstick only and is applicable to an offence in the mid-range of seriousness having regard to its objective factors only. The standard sentence is not the primary sentencing consideration, or the starting point from which to add or subtract time. It is only one of the many matters to be considered in the instinctive synthesis of all matters relevant to sentencing.
64The law requires me to fully identify the facts, matters and circumstances which bear upon my decision as to the appropriate sentence. In these remarks, I have endeavoured to address these matters in some detail. The sentences that I will impose in this case are lower than the standard sentence. In arriving at the sentences in this case, I have taken into account all matters I am required to consider under the Sentencing Act including the standard sentence, and I have also considered the various mitigating factors which apply.
65In respect of current sentencing practices, I am required to only take into account sentences imposed where the standard sentence scheme applies.
66I have considered the comparative cases discussed during the plea and those set out in the Table supplied by the prosecution as indicators of current sentencing practices since the introduction of the Standard Sentencing Scheme. The current sentencing practices are a guide, but not a controlling factor in sentencing. They are one of the many matters I must take into account.
67Pursuant to s 6B(2)(a) of the Sentencing Act, you will be sentenced as a Serious Sexual Offender for Charge 3 on the indictment because periods of imprisonment will be imposed on Charges 1 and 2. Section 6D of the Act requires that community protection be the principal sentencing purpose for that charge. A disproportionate sentence to achieve community protection has not been suggested and is not necessary in this case. Section 6E requires that the sentence is to be made cumulative unless otherwise directed, a reversal of the statutory presumption of concurrency which generally applies.
68The totality principle requires that the overall sentence must be just and proportionate to the total criminality of your offending. I must also seek to avoid a crushing sentence. To comply with these principles significant concurrency between the charges is required.
69There is tension between the presumption of cumulation under the serious sexual offender provisions and the totality principle. The totality principle must be considered having regard to the presumption of cumulation, but it is not displaced by the serious offender provisions, and it remains important in a case such as this. There is overlapping criminality between the charges in this case. The acts relied on as part of each course of conduct charge in many instances took place within the same incident. Furthermore, the charges are closely connected in time, circumstance and purpose. That said, each charge represents substantial criminality of a distinct type, and each charge involves multiple acts. I accept the prosecution submission there must be meaningful cumulation, particularly in relation to Charge 3.
70The minimum non-parole period is the period justice requires to be served before you become eligible for parole consistent with the objective gravity of the offending. The non-parole period mitigates punishment in favour of rehabilitation. This is your first sentence of imprisonment. You have no prior convictions. In the circumstances I have decided to allow for a reasonably significant period of supervision on parole. In fixing the non-parole period for a standard sentence offence where the sentence is under 20 years imprisonment, I am constrained to impose a period of no lower than 60 per cent of the head sentence unless I consider it is in the interests of justice to do so. In my opinion a percentage of lower than 60 percent would be inconsistent with the objective gravity of the offending.
71The nature and the objective gravity of the offending mean that general deterrence, that is the need to deter likeminded offenders from committing offences such as this, and just punishment are of particular importance in this case. Further, through the sentence I impose, I must denounce this abhorrent offending. Specific deterrence, that is the need to deter you from ever offending in this way again, is also a significant factor. As I said, I have taken into account the need to facilitate your rehabilitation via the non-parole period that I will impose.
Sentence
72Mr Bishop, you are sentenced as followed:
· Charge 1, I sentence you to 7 years and 6 months’ imprisonment.
· Charge 2, you are sentenced to 9 years’ imprisonment.
· Charge 3, I sentence you to 8 years and 2 months’ imprisonment.
73In respect of Charge 3 you are sentenced as a Serious Sexual Offender, and this will be noted in the court records. Charge 2 is the base sentence. One year of the sentence on Charge 1 and three years of the sentence on Charge 3 are cumulative on the base sentence and on each other.
74That makes a total effective sentence of 13 years. I fix a non-parole period of 8 years and 4 months.
75I declare the pre-sentence detention in this case is 371 days to be deducted from the sentence I have imposed.
76Pursuant to s 6AAA of the Sentencing Act, but for your plea of guilty, I would have imposed a sentence after trial of 17 years and 2 months with a minimum non-parole period of 13 years.
77Each offence here is a Class 1 offence under the Sex Offenders Registration Act 2004 which makes you a registrable offender. The reporting period is life.
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