Director of Public Prosecutions v Black (a pseudonym)
[2011] VCC 653
•25 May 2011
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted |
AT MELBOURNE
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Bryn Black (a pseudonym) |
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JUDGE: | HIS HONOUR JUDGE GUCCIARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 25 May 2011 | |
CASE MAY BE CITED AS: | DPP v Black (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2011] VCC 653 | |
REASONS FOR SENTENCE
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Catchwords: Sentence after trial- indecent act with child under 16- four charges of incest upon step daughter-breach of trust- high moral culpability- major depressive disorder effecting incarceration-serious sexual offender – lack of remorse- 7and half years with 6 years non parole period.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr G. Hughan | |
| For the Accused | Mr I. Polak |
HIS HONOUR:
1 Bryn Black,[1] you were found guilty by jury verdict of a charge of wilfully committing an indecent act with a child under the age of 16 and four charges of incest. The jury was unable to reach a unanimous verdict on a further charge of committing an indecent act.
[1] A pseudonym.
2
The indecent act was committed by you between October 2004 and
February 2005. The first incest was committed between October 2004 and February 2005 and was an act of sexual penetration by penis in the vagina. The second was committed by you between October 2004 and
7 February 2009by penis in the vagina. The third was committed by you between February 205 and February 2007 by penis into the mouth. The fourth was committed by you between October 2004 and February 2009 by tongue into the vagina.
3
You committed these offences upon your stepdaughter, whom I shall call "J". She was born in 1996 and was eight or nine on the occasion of
Charge 1, 2 and 3, and was nine or ten in relation to Charge 4 and 5.
4 You met your de facto wife, whom I shall call "R" in 1999 and commenced the relationship in which you lived together until January 2010. In 2004, you moved from Sydenham to Melton, and these offences were committed at that address.
5 As to the indecent act, that was an occasion when you had J on your lap and groin whilst her mother and sister were in a nearby kitchen. You were in the lounge and you pulled J towards you and the contact you had with her gave you an erection. When the others walked in on you, you jumped up and put a cushion over your crotch.
6 A few days later, you had sexual intercourse with J on a mattress on the floor, while your partner, R, was not at home. J was scared and went along with it. The second occasion of incest, occurred while R and her other daughter, "C", were out. You had sexual penetration with J on the couch in the lounge room. On the third occasion, while R was not home, you pulled J towards you in her mother's room and made her suck your penis. When it stopped, J ran out of the room, crying. On the fourth occasion, again in R's bedroom, you licked J's vagina.
7 Following the disclosure of the offences, you left the family home. Subsequently, a letter to the members of the family was found in your car, and in it you expressed your remorse for your deplorable acts. These offences were opportunistic and represent a breach of trust of a high order. Your moral culpability is high. Although J was not your natural daughter, she regarded you as a parent, and apart from the repugnance of the acts themselves which constitute the offence, the effect of this sexual abuse upon a child of tender years is a corruption of the care, protection and safety to which a child is entitled to rely and expect from a parent or someone who stands in their place. You have grievously infringed the fundamental rights of this child, and the damage done to her and her family by this trauma caused by your criminal behaviour will be long lasting and difficult to overcome. This damage is often destructive of trust, confidence, innocence and hopefulness, leading to despair and depression.
8 These effects call for retribution and punishment. The court must denounce such behaviour as yours as appalling and unacceptable, and endeavour to be protective of the most vulnerable member of our community: children. It must endeavour to deter you from further or similar offending, and send a clear message to anyone who is like-minded that stern and unequivocal punishment will meet them. These principles must be considered in the context of the circumstances of the offences and upon your circumstances with a view to an appropriate sentence , which will also consider your prospects for rehabilitation.
9 The maximum for incest is 25 years and by that maximum, the law seeks to demonstrate the serious nature of this offence. The ten year maximum for indecent act also indicates the relative degree of seriousness with which the law considers this behaviour.
10 I received two victim impact statements. In her statement, J has eloquently written that the behaviour has left her "degraded, used, hurt and violated". She reflects that she was jealous of other people's happiness and resentful of lies she had to tell to protect you. Because of your ongoing relationship with R, she feels she has lost her mother. She says her heart is broken, smashed like her trust in you. She is hyper-vigilant and scared. She has nightmares, she feels angry and hurt that her whole family has been affected. She is now living with an aunt and realises the stresses this has placed on that person.
11 Her aunt also wrote a victim impact statement and she confirms the emotional pain experienced by J as a result of her current estrangement from her mother. Before living with her, J had to live with another aunt. Though J’ aunt has bravely made a commitment to both J and her sister, C, this has naturally caused upheaval, emotional and financial stress. It goes without saying that the consequences of your offending will probably last longer than any sentence the court would impose on you.
12
You were born in 1967. You are now 43 years old. You have prior convictions in 1996 for cultivation, possess and use of cannabis, as well as older dishonesty street offences from New South Wales when you were
19 and 20. These are relatively unrelated and not significantly relevant, however I was also properly told of a subsequent offence in January 2010, where you caused injury recklessly, and wilfully damaged property of a neighbour, involving a degree of anger and aggression. You were placed on a bond.
13
You grew up in New South Wales. Your parents separated when you were
18 years old. They are now both dead. After the separation, your father remarried and there appears to be estrangement between you and your brother. You moved to Victoria when you were 25 years old, and your relationship with R began after a number of earlier relationships. You have no biological children of your own, but you considered R's family your own, in effect. You acknowledge being emotionally reliant on R.
14 You had left school at Year 10 and have a good work history, which is to your credit. You have had employment in many industries, including fire system maintenance, building and manufacturing. Some nine years after 2010 - that is, most of the period of the offending, you worked as a private investigator. You are not a gambler, you do not have illicit substance abuse and you have not used any substances over the past 12 years. You are a moderate drinker. You have no physical health issues and your personality is not disordered or psychopathic. I take these positive aspects of your background into account: a stable family life, consistent employment, absence of substance abuse, capacity for long term attachment.
15
You are currently moderately depressed, due to your predicament, but you reported to Pamela Matthews, who provided the court with a report dated
6 May 2011, that you had a lengthy history of depression with anxiety and suicidal ideation, generated by your parents' separation, illness and demise. You have a ten year treatment history.
16 In Ms Matthews' view, issues of loss and attachment are significant factors in what she describes as a major depressive disorder, which is likely to induce major depressive episodes, requiring acute treatment to attain longer-lasting mood stability. In this sense, Ms Matthews is of the opinion that you are likely to experience incarceration and separation as harder than most, requiring monitoring and vigilance. I take these matters into account.
17
You have received ongoing visits from R as well as her friend, and calls from your 21 year old stepson, "S". They will be your main source of support.
I have endeavoured to balance all and each of these considerations in reaching a sentence.
18 In relation to Charges 3, 4 and 5, I sentence you as a serious sexual offender, and declare that I have done so and record that fact in the records of the court. The presumption of concurrency is overturned as a result of the application of these provisions, and community protection is the primary consideration.
19 The prosecution did not argue that, in these circumstances, I should impose longer sentences than appropriate to the gravity of these offences, and I do not propose doing so. As a result of your conviction and sentence, you will be subject to registration as a sexual offender, for which the reporting period will be for life. The provisions relating to registration are onerous and give rise to a number of ongoing obligations upon your release. That is not a part of my sentence, but something that arises by operation of law.
20 I consider that a term of imprisonment is the only appropriate disposition in this matter and the review of sentencing standards and comparison which I have undertaken confirms, in my view, the intuitive assessment of the appropriate sentence.
21 I take into account the duration of this offending, your stated regret qualified by your plea of not guilty and the denials on oath you made in your evidence before the jury, evidencing a lack of insight and compassion for your young victim.
22 The complainant gave evidence of numerous further acts of sexual penetration, which she could not particularise. The regularity and frequency of these acts I have noted as background material, but the sentence, I make clear, is not for representative counts, but rather directly related to the discrete charges that you faced and were convicted of.
23
On the charge of indecent act, you are convicted and sentenced to
nine months' imprisonment.
24 On the Charge 2, 3, 4 and 5, you are convicted and sentenced to four years' imprisonment for each charge.
25
I order that one year on Count 3, 4 and 5, and six months on Count 1 be served cumulatively on Count 2, making a total effective sentence of
seven and a half years. I order a non parole period of six years. I declare that you have served 106 days, excluding today, by way of pre-sentence detention, and I will have that number noted in the court's records.
26 I make further ancillary orders in relation to 464ZF, in relation to the obtaining of a biological sample for placing on a database. I make that order because of the seriousness of the circumstances of the offending and the granting of the order, I find, is in the public interest.
27 Mr Black, if at the time that the request is made for taking of a mouth scraping under the supervision of an authorised member of the police force, you do not consent, then the sample taken will be a blood sample and the police may use reasonable force to enable that forensic procedure to be conducted; do you understand?
28 PRISONER: Yes.
29
HIS HONOUR: I have signed those orders. I will hand them down,
Mr Hughan. Are there any other orders that I need to make?
30 MR HUGHAN: No, sir.
31 HIS HONOUR: Thank you, remove the prisoner.
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