Director of Public Prosecutions v Bowden

[2016] VCC 297

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

TOBY BOWDEN (A PSEUDONYM)

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JUDGE:	HER HONOUR JUDGE COTTERELL
WHERE HELD:	Melbourne
DATE OF HEARING:	19 February 2016
DATE OF SENTENCE:	9 March 2016
CASE MAY BE CITED AS:	DPP v Bowden
MEDIUM NEUTRAL CITATION:	[2016] VCC 297

REASONS FOR SENTENCE
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms R. Fitzpatrick	Office of Public Prosecution
For the Offender	Mr M. Phillips	Victoria Legal Aid

HER HONOUR:

1Firstly, I will start by saying throughout my sentence I have used male pronouns when referring to the complainant, even though at the time of the offending the complainant lived as a girl. The complainant now identifies as a male.

2Toby Bowden[1], you have been found guilty by a jury of one charge of indecent act with or in the presence of a child under 16. The maximum penalty for that offence is 10 years' imprisonment.

[1] Toby Bowden is a pseudonym.

3You have been found guilty of six charges of sexual penetration of a child under 16. The maximum penalty for that offence is 15 years' imprisonment, given that he was under your care and control.

4Further, you have been found guilty of one charge of incest. The maximum penalty for that offence is 25 years' imprisonment.

5Your offending occurred in the context of a friendship and later relationship between you and the complainant and his mother, Emma Johnston[2].

[2] Emma Johnston is a pseudonym.

6These offences occurred between January 2000 and May 2006 and became part of the life of the complainant from the time he was about nine years old and continued throughout his schooling.

7At the time the offending commenced the complainant was a nine year old girl. He later transitioned, and at the time of giving evidence was a young man, having undergone hormone therapy towards the end of your offending. Your relationship with the complainant and his mother began when you lived in apartments in the same apartment block. You had an instant impression on the child, who was without a father, and formed an attachment to you.

8The first offence of committing an indecent act with a child under 16 occurred in 2000 when you, the complainant's mother and the complainant, went away for a weekend to Daylesford. You all slept together in a double bed and during the night the mother frequently left the bed to go to the bathroom and you touched the complainant on the vagina over his clothing.

9Between 1 January 2003 and 11 October 2003 you sexually penetrated the complainant when he was about 12 by introducing your penis into his anus. The offending occurred when you took him with you to clean a fish tank at your apartment, the complainant and his mother having moved out of that apartment block by that time. You had kept your unit but were staying with the complainant and his mother almost every night. Your relationship with the complainant had begun to involve sexual activity that does not form part of any of the charges for which I sentence you today. That activity involved the complainant masturbating you and giving you oral sex. You played a lot of sexual games and during that sexual activity you would frequently have porn on a screen. The complainant did not question whether the sexual activity was right or wrong. The complainant gave evidence that it was always treated as your secret, that is yours and his, and that you rewarded him with money and favours.

10In 2003 the first act of sexual penetration occurred as you were lying on a bed in your apartment with the complainant on top of you. You put Vaseline on your penis and told the complainant words to the effect of, "You guide it in". You were naked and the complainant had a shirt on, but nothing underneath. The complainant guided your penis into his anus and he described the penetration as being painful. It was a partial penetration which went on for about two minutes and you then ejaculated on your stomach.

11About one week later you again took the complainant back to your apartment to collect mail or to clean the fish tank. You again were on the bed with the complainant on top of you. You were naked. Vaseline was again used as a lubricant and the complainant again guided your penis into his anus. The complainant got off you and you masturbated until you ejaculated.

12On another occasion in the same year you took the complainant to your apartment and the complainant again guided your penis into his anus in much the same way as he had on the previous two occasions. On this third occasion of anal penetration you pushed your penis harder and the complainant excreted faeces. You became angry and you told the complainant you wanted, and I quote, you wanted it in his vagina and that he was ripping you off. That was the last occasion of anal‑penile penetration. That was Charge 4.

13In the same period, that is between 1 January 2003 and 11 October 2003, again in the same circumstances at your apartment, you introduced your penis into the vagina of the complainant. The complainant recalled that incident and identified it because he had held a pillow over his face in order to avoid seeing you. You inserted your penis probably half‑way into the complainant's vagina and the act did not last for very long. On that occasion you gave the complainant $100. That is charge five.

14The next occasion occurred when the complainant had changed schools and was attending school in Southland. The complainant recalled this incident because you gave him money and drove him to Southland. It was memorable because you bought a rose for the complainant on Valentine's Day and the agreement was that you would drive the complainant to Southland in exchange for sex that occurred in the complainant's mother's bed. It only lasted a couple of minutes because you ejaculated very quickly.

15The next occasion about which the complainant gave evidence was that he had been invited to a party with school friends where there was alcohol. You offered to give the complainant a lift, but first you took him to the apartment where he was living with his mother. You inserted your penis into his vagina. He was underneath and you were on top. You ejaculated. The complainant then had a shower and you dropped him off at a friend's house having given him money to buy alcohol to take to the party. That was charge seven.

16In 2005 you moved to an address in Berwick with the complainant's mother and the complainant. At this stage you were in a de facto relationship with his mother and the complainant would introduce you to friends as his step‑dad. One afternoon in 2006 when the complainant was in Year 10 and going to school in Berwick he was wearing his school uniform of a skirt, jumper and shirt, and he was at home when you wanted to have sex. The complainant indicated to you that he had his period at the time and you put a towel on the bed. You then introduced your penis into his vagina and the complainant recalled that you ejaculated and there was blood on the towel and the ejaculate. That was charge eight. That was the last specified occasion of penile‑vaginal penetration.

17This was indeed most serious offending which went on through the period of your relationship with the complainant's mother and continued after you were living together in a de facto relationship which, of course, resulted in the final charge where you were charged with incest on the basis that you knew that the complainant was a child of your de facto spouse.

18During his evidence the complainant indicated that there was repeated sexual activity between you which continued almost until you separated from his mother.

19Your acts have had a traumatic effect on the complainant and a victim‑impact statement tendered as Exhibit B on the plea reveals a life of self‑harm, lack of trust in others, the mourning of a lost childhood, depression, anxiety and post‑traumatic stress which the complainant feels have resulted in his isolating himself from the world, giving up sport and music and making him feel like a lost cause. He has suicidal thoughts and has thus far failed to realise any of his potential.

20Your ex‑partner, the complainant's mother, also filed a victim‑impact statement indicating that on discovering the offending when she was finally told about it by her child, she was completely shattered and she has then continued to feel guilty at her inability to have noticed what was going on and to protect her child and she is distraught to see his ongoing suffering. She declares that she has lost self‑confidence and self‑esteem and is on antidepressant medication. She also feels she has had a lack of support from family and friends and has become estranged from many people and has lost all interest in socialising.

21The effects of your offending have been severe and are far‑reaching in the lives of your former partner and the complainant, and I take those matters into account as far as I am able in sentencing you.

22I now turn to matters personal to you. You were at the time of the offending aged 30‑36 years. You are now 45 having been born in 1971. I note that you have no relevant criminal history and no subsequent offending and that you still have the support of your family and friends.

23Tendered as Exhibit 1 was a report by consultant psychologist Carla Lechner. She sets out your personal history in some detail. You and your siblings were raised by your father when your parents separated. You had very little contact with your mother who had some mental health problems and, it would appear, that one of your sisters was also diagnosed with bipolar mood disorder and subsequently died of medical complications associated with substance abuse. You are a single man with no dependants having been in a long‑term relationship with the complainant's mother until it ended in 2013.

24You had tried IVF unsuccessfully with the mother of the complainant and you lived as a family with the complainant and his mother. Following the separation the complainant told his mother of the offending and you were charged in August 2013.

25You grew up in New South Wales and you indicated that you had learning difficulties associated with poor concentration, distraction and day‑dreaming, symptoms similar to those which attract an attention deficit disorder diagnosis. You have also suffered some bullying at school.

26Your father took little interest in what you did. You would roam around as you pleased but you were physically punished if you were caught doing something wrong. You recalled beatings, including with a riding crop, and you, in your own words, drifted away from your family as there was no emotional support for you. You lived on the street. You had wanted to leave, as your father, you reported, wanted your dole money. Eventually you moved to Melbourne with a friend and found work as a labourer in a transport company, remaining with that company for about six years and attaining your truck driving licence and a range of proficiency tickets.

27During that time when you were just starting out on your life as a young adult you had an experience as a young man which went on over the years from about 17 to your early 20s which caused you confusion as to your sexuality. Despite the difficulties of your childhood and upbringing and the experience from your late teens to your early 20s you maintained employment working with another transport company for 17 years and, indeed, only left that employment when these charges were laid.

28In relation to your relationship with the mother of the complainant, you told Ms Lechner that your relationship had been happy and that your relationship with the complainant was initially very friendly and good but seemed to deteriorate with the onset of adolescence. It appears that your relationship with the mother deteriorated over time, and also that you were still together as a family unit during the transition of the complainant to a male identity, and you were aware of those circumstances.

29You denied your involvement in the offending which brings you before the court. Ms Lechner is unable to comment in relation to that and she is not able to comment because of your denials on any remorse or what your future risk of further offending might be. As I say, as you deny the offending. She diagnosed you as exhibiting a mild to moderate level of depression which appeared to be reactive to the court proceedings.

30Tendered as Exhibit 3 were a bundle of employment references, certificates and letters in relation to your many years of employment. It is indeed an impressive career for one who started in his teens with no qualifications whatsoever.

31Tendered as Exhibit 2 are a number of personal references including a letter from your father who I know is suffering from severe ill‑health who indicates that you have tried to protect him and all of the family from the stress and implications of your predicament and have sought not to worry him due to his health problems. He reveals in that letter a little of the difficulties of being left to bring up four children under seven as a sole parent. He writes that he has seen you interacting with your nieces and nephews and has never seen anything but love, honesty and integrity in your interaction with those children. He writes that you are a person who takes care of things in the family, making funeral arrangements for one of your sisters and for your mother. He writes of you with pride and love.

32Your stepmother has also written a moving letter telling of her relationship with you over 40 years of being your step‑parent. She indicates her belief and support for you.

33Letters from your brothers fill out more information of the difficulties of your childhood and your loyalty and kindness to all members of your family. They indicate regret that you did not go to them for support during the period of the trial.

34There is also a letter from your stepbrother and your current partner. All have also written about your caring for your very close friend during the last two photograph years of his life. A further reference from a man who is in a relationship with your sister and a friend who has known you since she was nine years old. There are a series of letters from your niece and from another friend. All of these letters, too numerous to go through in detail, are testament to your extremely kind nature, the fact that you are a gentleman, the absolute belief that all of these people have in you and I take these matters into account as far as I am able in the circumstances.

35There are further letters from your long‑time employer, and from a colleague who worked beside you for the past 11 years and from your employer from March 2015 to the present day indicating that you are an exceptional worker and will have employment even with a gaol sentence imposed on you.

36There is a further letter from a friend who refers to the matter I have already referred to indicating your care in looking after your mutual friend, in the final two and a half years of his life. And a final letter from a couple who you met at the funeral of your mother and they have gone on having not really known you, but developing affection for you.

37It is clear from those letters that there are many people in your family and your community who have absolute faith in you and who are offering you total support through this ordeal. I take all of those matters into account as much as I am able in the circumstances in which you have been convicted of very serious offences following two jury trials. Certainly the matters testifying to your character bode well for your rehabilitation, both the support and the offer of employment, together with those matters your lack of prior convictions also bodes well for your future rehabilitation.

38I regard the uncharged acts in these matters which I referred to earlier as providing context against which the offences on the indictment were committed. And, of course, I sentence you only in relation to the acts covered by those eight charges. However, I accept that the incidents represented in these charges were not isolated and there was an ongoing pattern of behaviour between you and the complainant involving frequent sexual acts.

39I now turn to the other matters that I am required to take into account in sentencing you. Firstly, I turn to specific deterrence; that is that you must be deterred from committing any such offences again. Given there is nothing in your previous history of a similar nature and that you appear to have good prospects of rehabilitation I do not place any great weight on specific deterrence in sentencing you.

40I am furthered required to consider general deterrence, that is, that other members of the community must be deterred from taking advantage of that particular position of trust created within a family by abusing the very children that they are supposed to protect. It must be understood by the community that such actions will have serious consequences for those who perpetrate them. You were clearly in a position of trust in relation to the complainant as a child and the complainant was frequently under your care and control at the time of this offending. I am also required to denounce your conduct on behalf of the community and I do so. Your behaviour has resulted in irreparable damage to the complainant and affects every aspect of his life. It has resulted in his being socially isolated and isolated from other members of his own family. Such devastation of children by sexual abuse and the consequent affect that devastation has on the adults they become offends against the values of any civilised community.

41The courts have taken a very serious view of the abuse of children by their parents or others entrusted with their care, particularly in situations such as yours where the child developed a natural affection for you during the early years that you were involved with the family.

42Finally, I am required to impose just punishment in all the circumstances. That, of course, involves balancing these matters which have been put on your behalf in mitigation against those which I have just listed. The matters in mitigation are, of course, the fact that you have no prior convictions and there is no evidence of physical force in relation to this offending. It is clear that you have that support that I have just described from your family and friends who attended your trial and plea hearing and many of whom are indeed present in the court today and the others who wrote references on your behalf. I have to contrast those matters, of course, weigh them up with the matters I have just listed. I further need to take into account that on the third charge on the indictment you will be sentenced as serious sexual offender for the purposes of sections 6 and 6E of the Sentencing Act. However in your case I consider it neither necessary nor appropriate to impose a sentence which is longer than that which is appropriate to the gravity of each of the relevant offences and, accordingly, I do not do so.

43In relation to the requirement for cumulation, I have considered how the sentences imposed relate to each other and in doing so I have applied the principles relating to concurrence, cumulation, totality and proportionality. I have determined that there must be some cumulation so that the total effective sentence imposed is just and adequately reflects the total criminality involved while at the same time imposing a sentence which is not crushing.

44Would you now stand for me, please.

45On Charge 8 you are convicted and sentenced to seven years' imprisonment.

46On Charge 1 you are convicted and sentenced to 12 months' imprisonment.

47On each of Charges 2, 3, 4, 5, 6 and 7 you are convicted and sentenced to five years' imprisonment.

48I direct that using the charge on Count 8, which is incest, as a base sentence, I direct that three months of the sentence imposed in relation to Charge 1 be served cumulatively on the base sentence and on the other sentences, and six months of each of the charges of sexual penetration, that is Charges 2, 3, 4, 5, 6 and 7 be served cumulatively upon each other and upon the sentence imposed in relation to Charge 8. That in my reckoning is a total effective sentence of ten years and three months.

49I further declare that the period of 93 days pre‑sentence detention be deemed time served and that that be entered into the records of the court. And further pursuant to s.6F I declare the prisoner a serious sexual offender. I also make the order in relation to s.464ZF1 and that is that you provide a DNA sample, and I will read out that order to you when it is handed to me.

50Given that the sentence is ten years and three months I order that you serve eight years before being eligible for release.

51Further, as a result of my sentencing you today you become a registrable offender pursuant to the Sex Offenders Registration Act and you will shortly be handed a form to be signed which acknowledges that you have received notification of your reporting obligations. You will, according to that legislation, be required to comply with these reporting obligations for life. So if you would just remain there the documents will be given to you.

52In relation to the s.464ZF application on the basis of the seriousness of the circumstances of the offending and that the order is not opposed and the granting of the order is in the public interest I order that you undergo a forensic procedure for the taking of a mouth scraping, and although it is not opposed I have to inform you that if at the time of the request you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the Police Force then police may use reasonable force in order that that procedure be carried out. Thank you. Yes, you can take the prisoner, thank you.

53I would like to thank all the people in the court. I know how difficult this must be for you and I thank you for remaining composed and dignified.

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