Director of Public Prosecutions v Castleton (a pseudonym)

[2022] VCC 382

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

LEO CASTLETON (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE TIWANA
WHERE HELD:	Melbourne
DATE OF HEARING:	3 March 2022
DATE OF SENTENCE:	30 March 2022
CASE MAY BE CITED AS:	DPP v Castleton (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2022] VCC 382

REASONS FOR SENTENCE
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Subject:Criminal law – Sentence

Catchwords:              Sexual assault of a child under 16 – Sexual penetration of a stepchild – Offending took place over a period of time on a single day – Victim 15 year old stepdaughter  –  No relevant criminal history – Early guilty pleas – Prior good character – No drug or mental health issues – High moral culpability – Burden of custody due to COVID – 19 pandemic – Rolled up charge – Serious sexual offenders provisions – Mandatory registration under the Sex Offenders Registration Act 2004. 

Legislation Cited:      Crimes Act 1958; Sentencing Act 1991

Cases Cited:DPP v Dalgleish (2016) VSCA 148; R v Sposito (unreported, Criminal Court of Appeal, 8 June 1993; Worboyes v The Queen (2021) 96 MVR 344; Gordon v R [2013] VSCA 343; R v Jones [2004] VSCA 68.

Sentence:Total Effective Sentence of 8 years and 3 months with a non-parole period of 5 years and 6 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A Roodenburg	Office of Public Prosecutions
For the Accused	Mr C Tom	Victoria Legal Aid

HIS HONOUR:

Introduction

1Leo Castleton[1], you have pleaded guilty on indictment to two charges of sexual assault of a child under 16, contrary to s49D(1) of the Crimes Act 1958 and three charges of sexual penetration of a stepchild, contrary to s50D(1) of the Crimes Act 1958.

[1]A pseudonym.

2Sexual assault of a child under 16 carries a maximum penalty of 10 years’ imprisonment. It is an offence to which the standard sentencing regime applies. The standard sentence is 4 years’ imprisonment.

3Sexual penetration of a stepchild carries a maximum penalty of 25 years’ imprisonment. This  is a Category 1 offence[2] and is also subject to the standard sentencing regime; the standard sentence being 10 years’ imprisonment.

[2]Sentencing Act 1991 s3(1).

Circumstances of the Offending

4The circumstances of your offending are set out in an agreed amended summary of prosecution opening dated 3 March 2022.[3]

[3]Exhibit A.

5At the time of the offending, you were 50 years of age. The victim, your stepdaughter, Sophie,[4] was aged 15. As a result of your relationship with Sophie’s mother, Ms Castleton[5], you had been present in Sophie’s life since she was a one year old. You married Ms Castleton some 10 years ago. You and Ms Castleton have a son who is now aged 13.

[4]A pseudonym.

[5]A pseudonym.

6Sophie described you as being ‘like her dad’ and that you treated her like his daughter most of the time.

7The offending occurred on 19 February 2021, while your wife was at work. You and Sophie were preparing dinner. You offered her a white wine. She accepted and drank two glasses of white wine whilst preparing dinner. You, Sophie and your son had dinner together. During dinner, Sophie had a vodka cruiser. After dinner, your son went to his room, and you and Sophie went to the back patio area for a cigarette.

8Whilst outside, you gave her another vodka cruiser to drink. You then asked her if she wanted to remove her clothes and do a ‘nudie run’. She refused, but you kept on asking, promising to give her a cigarette in exchange. Sophie agreed and removed her clothes. Initially she kept her underwear and bra on, but after further requests from you she removed them. You also removed your clothes.

9You then suggested that you both move behind a portable fireplace, out of view of the windows, so that you would not be seen. You then touched and rubbed Sophie’s buttocks and grabbed and touched both of her breasts (Charge 1 - Sexual assault of a child under 16). Sophie describes being scared while this was happening and that she couldn’t talk or move.

10You then kissed her on the mouth, inserting your tongue into her mouth and kissed her breasts (uncharged acts).[6] You moved your hands onto her vagina and inserted your finger in and out of her vagina for a minute or so (Charge 2 - Sexual penetration of a stepchild).

[6]This merely provides context for what followed – Charge 2.

11Sophie felt sick and moved away from you to vomit onto the grass. You gave her a bottle of water and she had a drink. You kissed her on the lips and told her to come into your bedroom. Both of you dressed and went into the bedroom.

12Having entered your bedroom, you shut and locked the door. You both removed your clothes and Sophie laid on the bed. Having laid down next to her, you took her hand and placed it on your penis, moving her hand in a masturbating motion (Charge 3 - Sexual assault of a child under 16).

13You then told her to suck your penis and inserted your penis into her mouth (Charge 4 – occasion one – Sexual penetration of a stepchild, rolled up charge). You then moved down the bed and began licking her vagina, moving your tongue in and around the lips of her vagina (Charge 4, occasion two).

14You proceeded then to get on top of Sophie and inserted your penis into her vagina, moving it in and out until you ejaculated inside her (Charge 4, occasion three). Sophie stated that when you penetrated her vagina with your penis, it hurt. She felt scared while this was happening, and couldn’t move or say anything.

15Having ejaculated, you told her to go to the toilet. Sophie noticed some blood and what she believed to be semen when she wiped herself in the toilet. She had not had penile-vaginal sexual intercourse prior to this occasion. She then went to her bedroom.

16About an hour later, you went to Sophie’s bedroom and told her to come with you. You took her to the spare room. You asked her to pull her pants down and bend over a chair. You pulled your own pants down and penetrated her vagina with your penis whilst standing behind her. Once again, you moved your penis in and out of her vagina until you ejaculated (Charge 5 – Sexual penetration of a stepchild).

17You told Sophie not to tell anyone about what happened. Sophie then returned to her bedroom.

18The following morning you went to Sophie’s bedroom and told her that you had had fun the night before.

19Initially, Sophie did not tell anyone about what had occurred. Eventually, she discussed it with a friend at school. On 23 July 2021, Sophie handed her mother a handwritten note that described what had occurred on 19 February 2021. Your wife sent you a text asking you to return home from work as soon as possible.

20When you arrived home, the note written by Sophie was given to you. You read it and told your wife it was all true. You asked your wife whether Sophie wanted to report the matter to the police.

21The next day, you went to work. Text messages were exchanged between you and your wife. In the messages you sent, you apologised for what you had done and enquired if Sophie was going to report the matter to the police.

22The offending was reported to the police on 25 July 2021.

23On 26 July 2021, Sophie made a VARE[7] statement. A pretext recording involving your wife calling you was also conducted. You made further admissions during this call in relation to the sexual acts you had committed.

[7]Visual Audio Recorded Evidence.

24That same day, you attended Morwell police station. You made full admissions in your police interview. In particular, you stated:

·        You looked upon Sophie as your own daughter.

·        You had no idea what came over you that day.

·        You admitted giving Sophie alcohol and committing the sexual acts. You said that Sophie had agreed to the sexual acts.

·        You agreed that you told Sophie not to tell anyone about what you had done because it was the wrong thing to do.

·        You asked her the following weekend or soon after, if she wanted another nudie smoke and she said ‘No’.

·        You apologised to her for making her feel uncomfortable and nothing happened after that.

25Following your interview you were charged and remanded in custody where you have remained.

Impact on Victims

26In sentencing you, I have taken into account the contents of the two victim impact statements tendered in this matter.[8]

[8]Exhibits B and C.

27Sophie was a normal, happy teenager who got along with everyone and trusted people. Your offending has taken away that happiness and the trust she once had. She feels like a completely different person. A person who is now emotional, sad, angry, scared, and worried. The smallest of things now tip her over. You have taken away her sleep, her appetite, her energy, and her trust of men. Following the incident, her attendance at school declined. When she attended, she struggled to concentrate. Her results suffered. She has no intention of continuing with her schooling. In short, it is abundantly clear you have profoundly impacted Sophie’s life.

28Sophie’s mother in her victim statement refers to the one page, 32 lines and five minutes of reading, namely, the letter that her daughter handed to her on 23 July 2021. That letter led to her entire world spiralling out of control. It has led to anger, emotion, and instability in her life. She is now taking medication for depression. She cannot help but blame herself for what happened. I pause here and make it absolutely plain, she is not to blame one bit. There is only one person responsible and that is you, Mr Castleton. She has struggled with many challenges as a single mother now. You have left her emotionally and financially unstable.

Personal Circumstances

29You were born and raised in a small town in rural Victoria. You are the middle child of five siblings. Your youngest sister died shortly after birth. You maintain a good relationship with your remaining siblings – two older brothers and a younger sister. Your parents are now in their 80’s.

30You enjoyed a stable upbringing and attended a local high school. Having  completed Year 10, you secured employment in maintenance at a caravan park. You worked there for nine months before working for almost a year for a logging company. You then commenced and completed an apprenticeship in roof tiling. You have worked as a roof tiler for some 35 years, the last 20 years as a sole trader running your own business. Prior to your arrest and remand, you had a successful business that had a number of employees.

31You have been in two long-term relationships. You met your first wife at the age of 16 and were married when you were 24. You divorced 10 years later. You have two sons from this marriage who are now in their 20s. Your eldest son has two children aged two and three. You maintain a close relationship with your sons.

32Your second relationship was with Sophie’s mother. As stated earlier, you were married to Ms Castleton at the time of this offending. Your relationship produced a son who is now aged 13.

Matters in Mitigation

33You have pleaded guilty at the earliest opportunity. You have not challenged the victim’s account. By pleading guilty, you have facilitated the course of justice and taken responsibility for your actions. You have also saved the community the time and expense of a trial and, more importantly, spared the victim from further trauma by having to relive the offending in court.

34Furthermore, your pleas of guilty attract a greater utilitarian benefit, as they have been entered when the courts are facing significant delays in relation to criminal trials. The courts must encourage those who are guilty to so plead and such encouragement must come from an ‘actual and palpable’ amelioration of sentence.[9]

[9]Worboyes v The Queen (2021) 96 MVR 344.

35I also accept that your pleas of guilty are demonstrative of genuine remorse. When your wife gave you the letter written by Sophie, you immediately accepted the accuracy of its contents. You apologised for your offending in a text message exchange with your wife. You made full admissions when interviewed by the police and expressed remorse. You have also expressed your remorse to Mr Candlish, who prepared a psychological report dated 14 February 2022.[10]

[10]Exhibit 2, see [14] and [70].

36You are effectively a man of prior good character. I pay no regard to your offending in 2007, which attracted a financial penalty for failing to comply with taxation requirements.

37You have been in custody since 26 July 2021. I accept that the pandemic has made your remand more onerous. You have been subject to periods in quarantine and endured many periods in lockdowns. You have had very limited access to courses and programs. You have had no personal visits from family and friends. You are in an environment where you have little control, causing you anxiety over contracting COVID-19. I accept that your time on remand has been isolating and difficult.

38I have had regard to the psychological report prepared by Mr Candlish. The report identified no childhood trauma. You have never used any illicit drugs and have had no mental health issues. You have had an excellent work history. Mr Candlish has assessed you as falling in the low risk category in respect of future sexual offending. He opines that you have good prospects for rehabilitation.

Nature and Gravity of the Offending

39It cannot be any clearer, sexual offending against children is serious. In DPP v Dalgliesh,[11] the Court of Appeal stated at [43]:

Society, the legislature and the courts are at one regarding the objective seriousness of sexual offending against children, and of incest in particular. Reflecting community views, courts have condemned in the strongest terms sexual offending against children by those responsible for their welfare.

[11][2016] VSCA 148.

40The inherent seriousness of the offence of incest was expressed by Marks J in R v Sposito[12] at [4] as follows:

The offence of incest is particularly erosive of human relations and casts doubt on the assumption that parents are natural trustees of the welfare of their children. It ought to be unnecessary to recount the morbid features of incest, the most prominent of which include the exploitation by the stronger will of the adult of the weaker will of the child, the physical and psychological sub ordination of the child to the perverted indulgences of the adult, the gross breach of trust placed in the offender by the victim and the community, and the irreparable fundamental damage to the victim.

[12]        (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, 8 June 1993).

41The maximum penalties and the standard sentences make it abundantly plain how seriously this offending is viewed by Parliament.

42Charge 4 is a rolled-up charge encapsulating three separate occasions of penetrative offending. You are to be sentenced for the totality of the offending represented by this charge.[13]

[13]R v Jones [2004] VSCA 68 at [13].

43Your offending has many grave features:

(i)You offended against a young 15 year old child. You were a mature adult, aged 50. There was plainly a significant disparity in age.

(ii)The child was effectively your daughter. You had been in her life since she was a one year old. She was dependent upon you, living with you and under your care. The offending represented a very grave breach of trust. Whilst this is an inherent aspect of the offence of sexual penetration of a stepchild,  it is not so in relation to Charges 1 and 3.

(iii)The offending occurred in the victim’s home, a place where she was entitled to feel safe.

(iv)In respect of Charges 4 and 5, you did not wear a condom and ejaculated inside the victim’s vagina, placing her at risk of both pregnancy and sexually transmitted diseases.

(v)The offending may have been limited to a single day, however, it occurred over a period of a few hours. There were breaks between the offending, allowing you the opportunity to reflect and desist from further offending. After the first incidents outside, you went on to offend in your bedroom and then again, an hour later, in the spare room.

(vi)The victim was vulnerable as a result of having consumed alcohol prior to the commission of any of the charged acts. She vomited because of her alcohol intake after Charges 1 and 2 had occurred.

(vii)As already noted, the impact upon the victim has been profound.

44As the above matters indicate, the offending you engaged in was very serious.

45Further, I regard your moral culpability as being high. You absolutely knew what you were doing was wrong. This is not a case where your moral culpability is anyway diminished as a result of any Verdins[14] or Bugmy[15] considerations.

[14]R v Verdins (2007) 16 VR 269.

[15]Bugmy v The Queen (2013) 249 CLR 571.

Sentencing Considerations

46The sentence I impose must justly punish you for this very serious offending. I must denounce your offending, reflecting the community’s abhorrence of it.

47General deterrence must be given prominence in the sentencing exercise. The sentence I impose must seek to deter others from committing sexual offending against children.

48I must have regard to community protection when sentencing you. Indeed, community protection, as a result of the serious sexual offender provisions, has primacy in relation to Charges 3, 4 and 5.

49Given your good character, early pleas of guilty, admissions, remorse, and low risk assessment, specific deterrence is of less prominence in your case. These same factors also lead me to conclude that you have good prospects of rehabilitation.

Standard Sentence

50Sentencing requires taking into account many different matters. The standard sentence is one such factor and no more. The sentence specified as the standard sentence is, ‘the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence is in the middle of the range of seriousness’.[16]

[16]Sentencing Act 1991 s5A(1)(b).

51The standard sentencing regime does not interfere with the instinctive synthesis approach the Court must carry out which involves distilling all relevant factors to arrive at the appropriate sentence.

52The Court must only have regard to sentences imposed in cases where the standard sentence regime applied.[17] I have had regard to the standard sentencing cases referred to me by your counsel, Mr Tom.[18] Current sentencing practices are not determinative; they are no more or less important than any of the other factors which the court is required to consider.[19] Each case ultimately turns on its own particular facts and circumstances.         

[17]Sentencing Act 1991 s5B(2)(b). The Court is not, however, precluded from considering principles established in past cases.

[18]DPP v Stevens (a pseudonym) [2021] VCC 1510; DPP v Orton (a pseudonym) [2020] VCC 2069; DPP v Murray (a pseudonym) [2020] VCC 1475; DPP v Royal (a pseudonym) [2021] VCC 1963.

[19]DPP v Dalgleish (2017) 262 CLR 428.

53The sentence on Charges 1 through to 5 will be lower than the standard sentence having taken into account the objective gravity of the offending as articulated earlier in these reasons, your high culpability, your personal circumstances, and the matters in mitigation. In mitigation, your pleas of guilty, accompanied by remorse must attract a significant amelioration.       

Serious Sexual Offender Provisions

54Pursuant to s6B of the Sentencing Act  1991,  upon conviction  and being sentenced  to a term of imprisonment  on Charges 1 and 2, you fall to be sentenced  as a serious sexual offender with regard to Charges 3 to 5 on the indictment. Pursuant to s6D of that Act, in determining the length of any sentence on Charges 3 to 5, I must regard community protection as the principal purpose for which the sentence is imposed. It has not been suggested, and nor do I consider it appropriate in this case, that a disproportionate  sentence  is necessary to achieve the protection  of the community.

55Pursuant to s6E of the Sentencing Act 1991, there is a presumption of accumulation with regards to sentencing for serious sexual offender offences. However, I must bear in mind the overarching principle of totality and the need to avoid a crushing sentence. I must ensure that the totality principal is applied in a manner that does not undermine the legislative policy inherent in s6E of the Sentencing Act 1991.[20]

[20]Gordon v R [2013] VSCA 343 at [74].

Sentencing

56I am grateful to Ms Roodenburg and Mr Tom for their careful and realistic submissions.

57As your counsel, Mr Tom, rightly conceded, there can be no doubt that this grave offending can only be dealt with by a significant period of imprisonment. Having taken into consideration all relevant sentencing factors and principles, you are sentenced as follows.

58On Charge 1, sexual assault of a child under 16, you are convicted and sentenced to 12 months’ imprisonment.

59On Charge 2, sexual penetration of a stepchild, you are convicted and sentenced to 5 years’ imprisonment.

60On Charge 3, sexual assault of a child under 16, you are convicted and sentenced to 18 months’ imprisonment.

61On Charge 4, a rolled up charge of sexual penetration of a stepchild, you are convicted and sentenced to 7 years’ imprisonment. This will be the base sentence.

62On Charge 5, sexual penetration of a stepchild, you are convicted and sentenced to 6 years and 6 months’ imprisonment.

63I order that one month on Charge 1, four months on Charge 2,  two months on Charge 3 and eight months on Charge 5  be served cumulatively upon each other and upon the sentence imposed on Charge 4. This makes a total effective sentence of 8 years and 3 months’ imprisonment.

64Pursuant to s11A(4) of the Sentencing Act 1991, I must fix a non-parole period of at least 60 per cent of a head sentence unless I consider that it is in the interests of justice not to do so. I direct that you serve a non-parole period of 5 years and 6 months’ imprisonment.

Pre-sentence detention

65Pursuant to s18 of the Sentencing Act 1991, the period of 247 days of pre-sentence detention, not including today’s date, is hereby declared as having already been served in respect of this sentence, and I order that such declaration and its details be entered in the Court’s records.

Serious Sexual Offender

66In relation to Charges 3 to 5, pursuant to s6F(1) of the Sentencing Act 1991, you are sentenced as a serious sexual offender and I order that this fact be entered into the records of the Court.

Section 6AAA declaration

67Pursuant to s6AAA of the Sentencing Act 1991, I indicate that had you pleaded not guilty to Charges 1 to 5 and been convicted of them, you would have been sentenced to a term of 11 years’ imprisonment with a non-parole period of 8 years.

Sex Offender Registration

68Pursuant to the relevant provisions of the Sex Offenders Registration Act 2004, registration is mandatory in relation to these offences and the reporting period is 15 years. Upon your release from prison, you must report your personal details to Victoria Police and continue to comply with the reporting obligations. You will be sent an acknowledgement form for signing in due course and will be provided with a document setting out your reporting obligations upon your release and the consequences of any breach. It is an offence punishable by a term of imprisonment to fail, without reasonable excuse, to comply with your reporting obligations.