Director of Public Prosecutions v Carlson (pseudonym)

[2014] VCC 2029

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARTIN CARLSON (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE MASON
WHERE HELD:	Melbourne
DATE OF HEARING:	12 & 21 November 2014
DATE OF SENTENCE:	3 December 2014
CASE MAY BE CITED AS:	DPP v Carlson (pseudonym)
MEDIUM NEUTRAL CITATION:	[2014] VCC 2029

REASONS FOR SENTENCE
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Subject:Plea – sentencing

Catchwords:      Sexual penetration of a child under 16 - maintain a sexual relationship with a child under 16 - indecent act with or in the presence of a child under 16 - attempting to commit an indecent act with a child under 16

Legislation Cited:     Sentencing Act 1991, Sex Offenders Registration Act 2004

Cases Cited:            

Sentence:                  31 months' imprisonment, non-parole period 18 months

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APPEARANCES:	Counsel	Solicitors
For the DPP at hearing For the DPP at sentence	Ms K Churchill Ms E. Allan	Office of Public Prosecutions
For the Accused	Mr D. Cash	Doogue O’Brien George

HIS HONOUR: 

1Martin Carlson[1], you have pleaded guilty to three charges of sexual penetration of a child under 16, one charge of maintain a sexual relationship with a child under 16, one charge of an indecent act with or in the presence of a child under 16 and one charge of attempting to commit an indecent act with a child under 16. 

[1] Martin Carson is a pseudonym

2Under the relevant legislation which was in effect at the time of the offending, the offence of sexual penetration of a child under 16 in Charge 1 on the indictment carries a maximum penalty of 20 years' imprisonment, and 10 years in Charges 4 and 5.  The offence of maintain a sexual relationship with a child under 16 carries a maximum penalty of 25 years' imprisonment; that of indecent act with or in the presence of a child under 16 a maximum penalty of ten years' imprisonment; and that of attempt to commit an indecent act with a child under 16 a maximum penalty of five years' imprisonment.

3You are presently 32 years of age, having been born on 28 May 1982.  You were aged between 13 and 21 when this offending occurred from January 1996 to December 2003. 

4You have a criminal record, to which I will refer in greater detail later.

5The circumstances of your offending are set out in detail in the agreed prosecution summary tendered on the plea.  I accept those details as accurate for the purpose of this sentence.  In essence the circumstances may be further summarised as follows.

6The first victim, Mary Atkins[2], is your younger cousin.  She is now aged 25.  The offending against her occurred between 19 January 1996 and 18 January 2002.  She was aged between 7 and 12 and you were aged between 13 and 19. 

[2] Mary Atkins is a pseudonym.

7Charges 1 and 2 relate to this offending.  Charge 1 represents the first time you had penile-vaginal sex with Mary Atkins.  It occurred when you were on holiday with your family at Foster.  On this occasion you penetrated Mary Atkins whilst on the floor of a toilet block.  Mary was crying and telling you to stop and that it hurt, but you persisted.  Afterwards she noticed there was blood coming from her vagina and later threw her knickers away because of the blood.  This offending occurred between 19 January 1996 and 18 January 1998.  At this time Mary Atkins was aged between 7 and 8 and you were aged between 13 and 15.

8Charge 2 represents sexual acts which occurred with Mary Atkins over a three-year period between January 1999 and January 2002.  At this time Mary Atkins was aged between 10 and 12 and you were aged between 16 and 19.  The acts committed included you:

·penetrating the victim's vagina with your penis,

·penetrating the victim's mouth with your penis,

·penetrating the victim's vagina with your fingers,

·penetrating the victim's vagina with your tongue,

·touching the vagina of the victim's friend, Judy Patrick[3], with your finger in the presence of the victim Mary Atkins.

[3] Judy Patrick is a pseudonym.

9The victim has said there were many more times you performed sexual acts with her.  This is relevant only to the context of the acts to which you have pleaded guilty. 

10

Charges 3, 4 and 5 represent sexual acts which occurred with the victim Judy Patrick.  These occurred when the victim was aged between 6 and 11 and you were aged between 16 and 21.  Judy Patrick is now aged 22.     

11The acts committed included you playing with the outside of the victim's vagina with your fingers (being Charge 3, indecent act with a child under 16); trying to put your penis inside the victim's vagina, eventually getting the tip inside (being Charge 4, sexual penetration of a child under 16); and putting your tongue inside the victim's vagina (being Charge 5, sexual penetration of a child under 16). 

12Charge 6 represents a sexual act you attempted to commit on the victim Marie Madden[4].  On this occasion you were also in the presence of Mary Atkins.  Marie Madden was a school friend of Mary's.  You kept asking Marie to put her hand on your penis.  You persisted and only stopped asking when Marie started crying.  Marie was aged between 9 and 11 and you were aged between 16 and 18.  Marie Madden is now aged 25.

[4] Marie Madden is a pseudonym.

13Both Mary Atkins and Judy Patrick and, to an extent, Marie Madden, have tendered victim impact statements.  Mary said the impact of the offending caused a personality change where she became introverted and anxious, ultimately dropping out of school after years of depression and self-harm.  The impact of the offending has made her internalise where she feels uncomfortable being with people.  Judy Patrick has referred to her feelings of guilt, hurt, anger, depression and self-hate.  Her relationships have suffered and she has feelings of hyper-vigilance.  Marie Madden has general concerns regarding her trust in men.

14I now turn to your personal circumstances. 

15As I noted earlier, you are presently 32 years of age, having been born on 28 May 1982.  You were aged between 13 and 21 when this offending occurred from January 1996 to December 2003.

16Again as I noted earlier, you have a criminal history.  Your first court appearance was at the age of 17 in the Frankston Magistrates' Court in the year 2000 when you were fined $400 without conviction for theft, obtaining property by deception and failing to answer bail.  In 2001 you reappeared there on various dishonesty, drug, driving and violence offences.  You were convicted and placed on a community-based order for 12 months with, I note, conditions that you attend for drug and alcohol assessment and treatment and that you attend and participate in grief counselling.  You were also fined $100.  You complied with the conditions of the community-based order.

17After this offending you were fined in 2004 and 2005, in interstate courts, for drug and driving offences. 

18You are currently undergoing sentence for offences committed in October 2012 of aggravated burglary, theft, assault, breach of intervention order and threat to inflict serious injury.  You were remanded in custody on 25 October 2012 and were sentenced in mid-2013 to three years' imprisonment with a non-parole period of 27 months.  You are due for parole on 24 January 2015 and your head sentence expires on 24 October 2015. 

19You grew up in the Frankston area as an only child.  You commenced using drugs of addiction at 15, graduating later to amphetamines and heroin.  Your mother died when you were 16, which was a traumatic event for you. 

20You have been in a long-term relationship with a partner.  In 2002 twin children were born.  You married in 2005 and you currently have five children aged between five and nine.  Two of the children have special needs.  Unfortunately your partner is no longer supportive of you and has ceased contact.

21

You have worked in the past with a synthetic grass company and commenced your own business as a gardener.  A growing addiction to the drug ‘ice’, however, resulted in a diminished work ethic and led to the offence for which you are currently serving sentence.    

22A 2013 report from Dr Cidoni, consultant psychiatrist, was tendered on your plea.  You have suffered from substance abuse issues involving cannabis, heroin and amphetamines.  You had some rehabilitation at an institution in 2008.  You have also disclosed a history of impulsivity, anger, dissociation, feelings of emptiness and low self-esteem, unstable moods, anxiety and episodes of self-harm.  You have also described periods of depression, which become worse on the anniversary of your mother's death.  According to Dr Cidoni, your history is consistent with a diagnosis of borderline personality disorder and, since November 2012, of a major depressive disorder requiring medication.  You are currently prescribed Risperidone which assists in the management of your depression.

23At the plea I was informed that there is a familial history of like offending, with one of your father's brothers, Andrew[5], having also been charged with sexual offences against your victim Judy Patrick, and your father having also been charged with incest with his sister at a young age.  It is speculative what this may have precisely meant in the family environment in which you grew up; however, I do take into account your instructions to your counsel that you were not close to your father, lost your mother at age 16 and were often in the care of your uncle Andrew.  It is unlikely that you would have received the appropriate nurturing and guiding influences that might otherwise have been expected of responsible parenting.  The prosecution has appropriately conceded that it is likely that the family atmosphere was toxic.

[5]Andrew is a pseudonym.

24The offences are very serious, were sustained in the case of two of the victims and particularly so in the case of Mary Atkins.  Whilst I take very much into account the fact that you were only in the rebuttable presumptive age of capacity to commit a crime when the offending began, you continued to commit the offending into adulthood when you could be expected to have had a clear appreciation of the wrongness of your acts. 

25The offending encompassed persistent sexual abuse of young girls spanning a period of nearly eight years.  Your acts amounted to a gross exploitation of your young cousin Mary Atkins and opportunistically as to her friends Judy Patrick and Marie Madden.  The victim impact statements tendered provide eloquent testimony to the hurt, anguish and lasting distress this behaviour can cause. 

26In mitigation I take into account the matters urged upon me by your counsel, including:

·    Your plea of guilty and the remorse which it encompasses.  Although occurring after a contested committal, it is significant in that it has spared the victims the ordeal of further examination and the challenge to the truthfulness of their accounts.  Many victims find comfort in this acceptance.

·    Your young age at the time you commenced the offending, and your youth throughout most of the offending.

·    The trauma to you of your mother's death and the likelihood that you did not receive the appropriate moral guidance expected of supportive parenting.

·    That the last of these events occurred 11 years ago.

·    Whilst there has been some unrelated offending about the latter time of these offences, you have not committed any subsequent acts of sexual offending.

·    Your use in early teenage years and into adulthood of drugs of addiction.

·    Your currently diagnosed conditions of depression and borderline personality disorder, which I accept will mean that for you any period in custody will be more onerous than for a person in normal health.        

27The basic purposes for which a court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation and protection of the community.  In sentencing you I must have regard to a range of matters such as the seriousness of the offence, your culpability for it, your personal circumstances and those of the victims.  I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society.

28In my view your very young potential age at the commencement of this behaviour, youth during most of its commission and still youthfulness at its cessation, together with the delay of years before being charged, are significant factors in determining the sentence.  If these matters had been prosecuted in a more timely way you could have been dealt with in the Youth Justice jurisdiction for most of the offending and would have faced a significantly different sentencing process.

29It is not unusual, however, for victims of sexual crimes to delay coming forward for many years after the event out of feelings of embarrassment or shame.  Considerations of delay must be balanced against the fact that these were offences committed against children and principles of general deterrence - that is, to make an example of the instant offender in order to deter others - remain important.

30There is a wide range of dates in offending.  You turned 19 in May 2001.  The offending against Mary Atkins concluded in January 2002.  You are likely to have still been a child yourself, being under 18, for the majority of the offending represented in Charge 2 and for the whole time of offending represented by Charge 1.  You only turned 18 in May 2000, so had only been 18 for ten months of the possible period of offending in the range applicable to Charge 3 against Judy Patrick.  Given the range, it is not certain that you were over 18 at the time of this offending. 

31Similarly, Charges 4 and 5, against Judy Patrick, transverse the period of possible offending when you were between 16 and 21, again raising the uncertainty of your period of age maturity as an adult at the time of particular offending.  In the case of Marie Madden you were aged between 16 and 18 but had only been 18 for two months at the end date of that period of offending.

32I consider it is significant that the offending began when you were still within the age of only a presumptive capability of crime and then the offending became habitual in the context of what I accept was very likely to have been a toxic parenting and familial environment.  You were an only child, lost your mother at 16, were not close to your father; and your early descent into the use of drugs of addiction is likely to reflect emotional or personality disturbances.

33Nevertheless, as I have previously mentioned, matters of deterrence, particular general deterrence, remain apposite.  The sentence which I impose must still reflect the seriousness of the offending which you committed.  Your offending cannot be categorised merely as an episode of youthful sexual experimentation; it is rather a continuing quest by you for sexual gratification at the expense of vulnerable young children.  Your moral culpability has increased over the course of your offending as you grew more mature and you must have had a developing sense that what you were doing was very wrong.

34Whilst this sexual offending occurred during a period over 11 years ago and you have not re-offended in a similar way since its cessation, I remain guarded as to your prospects of rehabilitation. Your conduct was sustained and regular over a significant period and at times involved force. In the intervening years to the date of this sentence you have committed other offences including offences of violence. On balance however, I am prepared to accept that your offending on these charges was opportunistic in the context of your youthfulness, that there is no evidence of general paedophiliac interest and the likelihood of further offending in a similar way is low.

35Under the serious offender provisions of the Sentencing Act 1991, on your conviction and sentence to a term of imprisonment on two sexual offence charges, I am required on the sexual offence charges thereafter to regard the protection of the community from you as the principle purpose for which the sentence is imposed. If necessary, in order to achieve the purpose of protecting the community, I am empowered by s.6D of the Sentencing Act to impose a sentence greater than is proportionate to the gravity of the offence.

36This means that the sentencing task in respect of Charges 3, 4, 5 and 6 on the indictment is to be undertaken on the basis that the protection of the community from you is the principle purpose for which the sentences are imposed.  To achieve that purpose, sentences may be imposed longer than that which is proportionate to the gravity of the offences considered in the light of the objective circumstances; however, because of the circumstances and mitigating factors in your case, I do not propose to do so. 

37Section 6E of the Sentencing Act also requires that, unless I otherwise direct with respect to Charges 3, 4, 5 and 6, the sentences I impose are to be served cumulatively.  Allowing for the matters I have already outlined, in my view it is not appropriate to impose cumulation other than that which I have ordered. 

38I note here that the Crown did not call for a disproportionate sentence as contemplated by s.6D of the Sentencing Act.

39Mr Carlson, could you now please stand. 

40On Charge 1 of sexual penetration of a child under 16, you are convicted and sentenced to six months' imprisonment. 

41On Charge 2 of maintain a sexual relationship with a child under 16, you are convicted and sentenced to two years' imprisonment. 

42On Charge 3 of indecent act with or in the presence of a child under 16, you are convicted and sentenced to six months' imprisonment. 

43On Charge 4 of sexual penetration of a child under 16, you are convicted and sentenced to one year's imprisonment. 

44On Charge 5 of sexual penetration of a child under 16, you are convicted and sentenced to one year's imprisonment. 

45On Charge 6 of attempt to commit an indecent act with a child under 16, you are convicted and sentenced to three months' imprisonment.

46Despite the years that have passed since the offending and your youth at the time, I consider some cumulation is appropriate given the fact that there are three separate victims. 

47Charge 2 is the base sentence. 

48I direct that six months of the sentence imposed on Charge 4 and one month of the sentence imposed on Charge 6 be served cumulatively on the sentence imposed on Charge 2 and upon each other. 

49The total effective sentence is two years and seven months' imprisonment.

50You were remanded in custody on this matter on 12 June 2013; however, you were sentenced in an unrelated matter on 19 June 2013.  On this date you were sentenced to a head sentence of three years with a non-parole period of 27 months.  237 days' pre-sentence detention was declared as time already served.  Your earliest release date is currently 24 January 2015 on this earlier sentence.  You have now been in custody whilst on remand for this matter for a total of 539 days not including today.  This period is otherwise known as Renzella time.

51The sentence today is concurrent with the sentence you are currently serving. Pursuant to s.14 of the Sentencing Act, I am required to set a new non-parole period.  The 237 days allowed as pre-sentence detention in your earlier sentence continues to apply.  I note that there is no pre-sentence detention available for this offending; however in terms of totality, in imposing the sentence that I have, I have reduced the sentence that I otherwise would have imposed by taking into account, in a broad way, the time that you were on remand whilst serving the earlier sentence.

52I direct that you serve a minimum term of 18 months' imprisonment before being eligible for parole.  The sentenced starts today. 

53Pursuant to s.6AAA of the Sentencing Act, but for your pleas of guilty the total effective sentence over all charges that would have been imposed is five years' imprisonment with a minimum period of three years to be served before eligibility for parole.

54Now, there is a further matter to which I also need to attend.  You may take a seat for a moment.

55I note that the offences to which you have pleaded guilty are registrable offences pursuant to the provisions of the Victorian Sex Offenders Registration Act 2004. Pursuant to s.11(6) of that Act, an application for a Sex Offender Registration Order was made by the prosecution and opposed by the defence.

56The history of persistent sexual abuse of these victims, their age and the nature of the offending would ordinarily persuade me that registration was necessary in the public interest.  However, because of you yourself being a child at the commencement and throughout much of this offending, the uncertainly of your actual-age maturity at its cessation, the years that have passed since this offending and the fact that you have not committed any further sexual offences in the intervening years, I am persuaded that I am not satisfied beyond reasonable doubt that you pose a risk to the sexual safety of one or more persons of the community.  I hence decline to make such order. 

57Is there anything else from counsel?

58MS ALLEN:  No, Your Honour.

59MR CASH:  No, Your Honour.

60HIS HONOUR:  All right.  2.15, thanks.

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