Director of Public Prosecutions v Cavanaugh (a pseudonym)

[2019] VCC 1946

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

LARRY CAVANAUGH (A PSEUDONYM)

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JUDGE:	HER HONOUR JUDGE DAWES
WHERE HELD:	Melbourne
DATE OF HEARING:	25 October 2019
DATE OF SENTENCE:	22 November 2019
CASE MAY BE CITED AS:	DPP v Cavanaugh (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2019] VCC 1946

REASONS FOR SENTENCE
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Subject: Indecent act with a child under 16 years, incest with a child of a de facto spouse, incest with a step-child. 
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Mr S. Devlin	John Cain, solicitor for Public Prosecutions
For the Accused	Mr J. Anderson	Slades & Parsons Criminal Law

HER HONOUR:

1Larry Cavanaugh[1], you were found guilty by jury verdict of fifteen charges.  Five charges of committing an indecent act with a child under 16 years, seven charges of incest with a child of a de facto spouse, and three charges of incest with a step-child.  You were acquitted on one charge of indecent act with a child under 16.  The offending occurred between 25 February 2001 and 24 February 2009.

[1] This is a pseudonym name.

2The complainant was born in 1993.  He is the eldest of two children.  His parents' relationship broke down when he was eight years of age.  You first met his mother in 1998.  You developed a friendship with her and at the same time, developed a relationship with the complainant.  You engaged in an intimate relationship with the complainant's mother in 2001 and you married her in November 2003.  Your child, the complainant's half-sister, was born in 2005.  You moved in with the complainant's family in 2001.  At first, the complainant looked up to you and your relationship with him was good, evolving into one where he saw you as a father figure. 

3The complainant states that between the ages of 8 to 16 years old, you “had your way with him” on a number of occasions.  He can recall the detail of some events.  Others he is not able to recall. A number of uncharged acts formed part of the evidence in this trial.  The complainant gave evidence that the sexual abuse occurred on an almost two monthly basis.  This evidence was part of the narrative in the prosecution's case and placed the charged acts in context.  I have not taken any of the uncharged acts into account when sentencing you. 

4A summary of the offences for which you were found guilty is as follows. 

Incident one

5In 2001, when the complainant was eight years old, he went with you to mow the lawns at your mother's house in Oakleigh.  No one was home at the time.  When the mowing finished, you took the complainant inside into your old bedroom and removed your pants.  You exposed your penis and the complainant described it “as massive, circumcised and erect”.  You told him to hold your penis, which he did.  He said that he “grabbed it and yanked it up and down” (Charge 1).  You also touched his penis, rubbing it up and down and tried to get it erect (Charge 2). You gave him instructions about what to do.  You told him to put his mouth on your penis, to give him “a special kiss”.  You put your penis into the complainant's mouth and it went right inside.  You told him to imagine it was a lollypop (Charge 3).  You then instructed the complainant to take his clothes off and go face down onto the bed.  You lay on top of him and inserted your penis into the complainant's anus (Charge 4).  He recalls your penis moving in and out.  He said that he was in agony.  He screamed out as loudly as he could, saying that it hurt.  The penetration continued until you ejaculated.  The complainant could feel your sperm inside his anus.  You then had a shower and directed the complainant to go to the toilet and clean himself up.  You then went home. 

Incident two

6Approximately one month later, you returned with the complainant to your mother's house.  No one else was home at the time.  After mowing the lawns, you took the complainant inside, going back into your old bedroom.  You told him to masturbate you and give you oral sex.  You then produced a “special toy”, which was a purple dildo with little bulbs on it.  You penetrated the complainant's anus to a small degree with the dildo.  He told you that he did not like it and that it felt weird (Charge 5).  You then removed the dildo and used your penis to penetrate his anus (Charge 6).  The complainant described you thrusting your penis in and out of his bottom and that you were having sex with him.  He said the anal penetration felt like torture and he screamed out in pain.  The penetration ceased when you ejaculated.  The complainant felt sperm inside his bottom. 

Incident three

7In around 2002, you moved into a house in Oakleigh South with your partner and her children.  The third time you sexually offended against the complainant occurred at this address.  He was nine years old.  The complainant's mother and sister had gone shopping to buy groceries.  You were at home alone with the complainant, who was in his room playing with toys.  You came in and started touching his penis on the outside of his clothing.  You then took the complainant's pants off and started to rub his exposed penis up and down for a couple of minutes (Charge 7).  As you were touching the complainant's penis, you told him to grab your penis and rub it up and down.  After a couple of minutes, you ejaculated.  You told the complainant that it was “what fathers and sons do all the time” (Charge 8).  

Incident four

8From the ages of 8 to 12 years old, the complainant participated in karate in Oakleigh.  You also did karate and would often take him to and from his classes.  One night when he was 10 years old, you drove him home from karate, via an industrial estate in Jacks Road, Oakleigh South.  You parked the car near the VicRoads office.  You told the complainant to give you oral sex and you would give him a chocolate bar.

9The complainant reached out, grabbed your penis and rubbed it up and down (Charge 9).  He then put his mouth over your penis.  He described imaging your penis was a lollypop, like you had told him before.  You held the back of the complainant's head at the same time.  The complainant gave you oral sex until you ejaculated into his mouth (Charge 10).  On the way home, you bought him a chocolate bar from 7-Eleven or Safeway.

Incident five

10On another occasion, when the complainant was 10 years old, you stopped outside a factory in Carroll Road on the way home from karate.  You offered the complainant $20 in exchange for him performing oral sex on you.  The complainant reached out and grabbed your penis, rubbing it up and down before he put his mouth on top of it and “used it like a lollypop”.  The complainant stated that your penis went right into his mouth, until you ejaculated (Charge 11).

Incident six 

11You married the complainant's mother in November 2003.  The complainant was 10 years old at the time.  The night before the wedding, you stayed at your mother and step-father's house in Oakleigh with the complainant.  One of your friends was also there that night.  You and the complainant slept in the spare room on mattresses.  Your friend also slept in that room.  While he was asleep, you asked the complainant to give you oral sex and promised to give him a chocolate bar.  The complainant reached out and grabbed your penis, before putting it inside his mouth and using it like a lollypop.  After a couple of minutes, he felt you ejaculate in his mouth (Charge 12). 

Incident eight 

12In 2006, the complainant was aged 13 years.  This incident occurred at your home in Oakleigh South.  Your daughter had been born the year before.  On this occasion, she was the only person at home, except for you and the complainant.  When you were in the lounge room, you inserted your penis into the complainant's anus.  His legs were on your shoulders, he was up against the couch and you were standing behind him.  The complainant described feeling your penis thrusting in and out of his bottom (Charge 14).  He was screaming at the time, as “it hurt like hell”, even though it was less painful than it had been before.  You told the complainant not to worry about the baby being there, as she was too young to understand what was happening. 

Incident nine

13The family went to Rye for a summer holiday in December 2007.  The complainant was 14 years of age, almost 15.  He recalls one occasion when his mother took his sisters shopping at Safeway during the day.  While they were out, you offered him $50 to give you oral sex.  You went into your bedroom and you sat on the edge of the bed.  The complainant was on his knees on the ground.  You told him to grab your penis and he rubbed it up and down before he put it into his mouth.  He stated that your penis was right inside his mouth and that he licked it like a lollypop until you ejaculated (Charge 15).  You then gave him $50.

Incident ten

14The last occasion where you sexually offended against the complainant was in 2008, when he was 15 years of age.  You both went to Southland to see a film called 'Iron Man'.  When you returned home, no one else was there.  You took the complainant into your bedroom.  The complainant got onto the bed and was on all fours with his hands and knees on the bed.  You grabbed him by the shoulders and penetrated his anus with your penis (Charge 16).  The complainant described that he was in pain and agony.  This assault hurt more than usual, as you were very forceful, thrusting your penis in and out of his anus.  He felt you ejaculate right at the end.  The complainant screamed for the duration of the penetration, as he did on each occasion of anal penetration.

15The complainant turned 16 in February 2009.  The abuse stopped at around this time as he refused to participate with you in any further sexual activity.  Over the years, the complainant did not tell anyone about being sexually abused by you.  You had told him that this sexual conduct was a normal part of a father/son relationship and he accepted your explanation.  He was embarrassed by what had occurred and thought that if he told anyone, he would get into trouble.  He also believed that he could forgive you for your conduct and continued to have contact with you after your relationship with his mother ended.

16In August of 2013, the complainant told his girlfriend that he had been abused and raped by you when he was a child.  A few days before Australia Day in 2015, he told his mother that he had been raped and abused by you.  He did not describe the events with any specificity.  His mother contacted the police and he first spoke to them in February 2015.

17You were arrested and interviewed by police on 22 April 2015.  You elected to answer 'no comment' to the allegations that were put to you in your record of interview.  You were released pending further investigation by police. 

18The filing hearing in your case did not take place until 5 January 2017.  There has not been a satisfactory explanation for the delay of more than eighteen months in the laying of charges, other than there was a change of informant in the early stages of the investigation.  Your case proceeded as a contested committal in the Melbourne Magistrates' Court on 8 and 9 June 2017.  A number of witnesses, including the complainant, were called to give evidence at that hearing.  You were committed to stand trial, entering a plea of not guilty to the charges. 

19The first listing of your trial was on 21 May 2018.  The case was adjourned at the request of your counsel to allow expert examination. The second listing of your trial was on 12 March 2019.  Your case was adjourned again as it was not reached. The third listing of your trial was on 8 August 2019.  You pleaded not guilty to the offences.  A number of witnesses were called by the prosecution, including the complainant.  Their evidence was challenged in the course of the hearing.  Your defence at trial was that the offending did not occur.  You gave evidence and were cross-examined at the trial.  The jury was unable to reach a verdict and was discharged.  The fourth listing of your trial commenced on 14 October 2019. You again pleaded not guilty to the offences.  The evidence of the witnesses from the earlier trial was replayed, as was your evidence.  You maintained that the offending did not occur. 

20On 21 October 2019, the jury by its verdict, rejected your defence.  You were found guilty of all charges on the indictment, based on the evidence of the complainant.  You were found not guilty of one offence of indecent act with a child under the age of 16.  The evidence supporting this charge was based on the alleged observations of the complainant's younger sister.  The delay in the resolution of your case of approximately four and a half years is not solely due to the fact that you elected to contest these charges.  I accept that it has been a source of anxiety for you, notwithstanding your plea of not guilty.  I take the delay into account and accept that it must have a modest mitigatory impact on your sentence. 

21A victim impact statement from the complainant dated 22 October 2019 has been prepared and read to the court.  In that statement, he describes lifelong insecurity that has developed from your conduct.  At the time of your offending, he was unable to enjoy his childhood and felt that he was simply trying to survive.  You have consistently denied your offending and failed to acknowledge the suffering that you have caused.  He is unable to develop any trust within a relationship and cannot socialise with others without feeling awkward. He describes that he is still not mentally right and is unsure whether he ever will be.  He remains unable to understand why he was the subject of this abuse. 

22A victim impact statement was also provided from his mother, your ex-wife, dated 24 September 2019.  It was read to the court.  She describes feelings of guilt, hatred, anger, regret and remorse for allowing you to come into her life, where you gained access to her son.  She has been further traumatised by your denial of offending and the drawn out court process.  She has struggled to support her children throughout this period.  She has developed mental health issues and requires ongoing medical treatment for this.  I take the relevant parts of the victim impact statements into account.

23You continue to deny your offending, as you have done since these matters were first raised.  In the circumstances that I have outlined, I am unable to conclude that you have shown any remorse whatsoever. 

24You have a limited criminal history with one prior appearance at the Dandenong Magistrates' Court on 22 March 1999, for offences of criminal damage.  You were released on an undertaking to be of good behaviour for twelve months without conviction.  You also pleaded guilty to having obscured numberplates, where you were fined without conviction.  The parties agree that these offences are not relevant to your offending.

25You were born in 1971 and are now 48 years of age.  You are the youngest of four children.  Your biological parents separated when you were very young and your mother commenced a relationship with your step-father when you were three years old.  Your upbringing was disadvantaged.  Your step-father was an alcoholic who sexually abused you and one of your sisters.  You were also sexually abused by your oldest brother, who was seven years your senior.  The period of abuse occurred when you were between the ages of 10 and 16 years.  The complainant in this matter prepared a note for the police when he first disclosed your offending.  In it, he stated that you had claimed that your brother and your step-father raped you when you were between the ages of 11 and 16 years.  The complainant wrote that he feels as though you have taken that out on him. 

26You attended South Oakleigh Secondary College, repeating both Year 11 and Year 12.  You did not complete Year 12.  While you were at school, you commenced working as a labourer at the age of 17.  You continued in that employment after you left school.  You then worked as a martial arts teacher for four years, earning a second Dan black belt.  You have worked consistently throughout your adult life.  You have also studied, acquiring a diploma in IT network engineering in 2004.  Most recently, you were employed as a storeman and manager at Safeway for over a seven year period, until May 2019.  Your income was $52,000 per annum.

27You commenced your relationship with the complainant's mother when you were 28 years of age.  You were married at 33 years and divorced when you were 40 years old.  You have one child of the relationship, who was born in 2005.  She is now almost 15 years of age.  You have not seen her since her 10th birthday.  You have no other biological children. 

28You are the respondent in intervention orders that have been taken out to protect the complainant and his family.  The Department of Health and Human Services became involved with your family when these allegations were made.  Whilst you have been awaiting trial, you have also been on bail.  You have complied with all of the court orders since they were imposed. 

29You are currently in a relationship and have lived with your partner in Rye for the last seven years.  Once these allegations came to light, an arrangement that was in place for her to have the care of her two children was not permitted to continue, in light of her relationship with you.  Your partner was present throughout the course of your trial and at your plea hearing and she maintains her support of you. Since May 2019, you have worked with her in one of her businesses, running the cellar door of a winery.  She is now operating her business without your assistance and has a number of health issues.  I am told that you have no relationship with your siblings and have not had for some time. 

30There is no suggestion that your offending was motivated by substance abuse, excessive alcohol use or any other behavioural or medical problems.  You have been diagnosed more recently with depression and anxiety and are medicated for these issues.

31Your offending ceased in February 2009.  You have not been charged with any other offences since that time.  You have successfully complied with court orders when awaiting trial.  You will be the subject of supervisory orders upon your release from custody, including periods on parole and the sex offenders register.  I accept that you are likely to comply with these orders.  Notwithstanding your lack of remorse, it appears that your prospects of rehabilitation are good in all the circumstances.

32The offending here is very serious, as it relates to a number of acts of sexual penetration.  Your offending involved a significant breach of trust between a child and his de facto step-father or step-father, over an eight year period.  Incest is an appalling crime.  The complainant was a vulnerable little boy who looked up to you as a father figure and a role model.  You took advantage of his vulnerability and youth when you committed these horrific and inappropriate sexual acts.  He suffered the indignity of being the victim of your persistent and protracted offending.  When you anally penetrated him, you also caused him extreme physical pain.  These acts of sexual violence have had a profound effect upon him.  You are to be sentenced as a serious sexual offender.  The prosecution do not however, seek a disproportionate sentence in your case. 

33The seriousness of your offending has been conceded.  In light of the gravity of your conduct, and your lack of remorse, a lengthy term of imprisonment is the only appropriate disposition.  I consider that general deterrence must be given significant weight in the sentencing process, as must the factors of denunciation and punishment.  Whilst the sentence I impose will be long, I consider that I must also give specific deterrence some weight in this process, in light of the number of offences that have been committed against the complainant.  You are to be the subject of the sex offenders register, with a mandatory period of life registration. 

34I take into account the maximum penalties for each offence.  I have read and considered the cases to which I was referred by the prosecution and current sentencing practices.  The principle of totality needs to be considered in light of this being a course of criminal conduct.  I have decided that there must be some, but not total cumulation, in the sentences I impose.  I have endeavoured to tailor your sentence to ensure that it is proportionate to your criminal conduct overall.  In assessing individual sentences, I have taken care not to doubly punish you for the offences. 

35Mr Cavanaugh, would you please stand.

36Balancing these factors as best I can, I sentence you as follows. 

37Charge 1, you are convicted and sentenced to 2 years imprisonment. 

38Charge 2, convicted and sentenced to 2 years imprisonment. 

39Charge 3, convicted and sentenced to 6 years imprisonment. 

40Charge 4, convicted and sentenced to 8 years imprisonment. 

41Charge 5, convicted and sentenced to 7 years imprisonment. 

42Charge 6, convicted and sentenced to 8 years imprisonment. 

43Charge 7, convicted and sentenced to 2 years imprisonment. 

44Charge 8, convicted and sentenced to 2 years imprisonment. 

45Charge 9, convicted and sentenced to 2 years imprisonment. 

46Charge 10, convicted and sentenced to 6 years imprisonment. 

47Charge 11, convicted and sentenced to 6 years imprisonment. 

48Charge 12, convicted and sentenced to 6 years imprisonment. 

49Charge 14, convicted and sentenced to 8 years imprisonment. 

50Charge 15, convicted and sentenced to 6 years imprisonment. 

51Charge 16, convicted and sentenced to 8 years imprisonment. 

52I direct that Charge 4 be the base sentence.  I direct that 1 year of the sentences imposed on Charges 6, 14 and 16, 9 months of the sentences imposed on Charges 3, 10, 11, 12 and 15 and 3 months of the sentence imposed on Charge 7, be served cumulatively upon each other and upon the base sentence. 

53That is a total effective sentence of 15 years imprisonment.  I direct that you be eligible for parole after serving a minimum term of 10 years and 6 months imprisonment. 

54I enter in the records of the court that you have served 32 days by way of pre-sentence detention. 

55I direct that you be placed on the sex offenders register for life. 

56Have a seat for a moment Mr Cavanaugh please.  Are there any further orders sought?

57MR DEVLIN:  Your Honour, it's obvious from Your Honour's sentence, but I don't think you've actually formally declared him being sentenced as a serious sexual offender.

58MR DEVLIN:  It is inclusive in it, but I think formally you should declare that.

59HER HONOUR:  Very well, thank you.

60MR DEVLIN:  And if I can just have a minute ‑ ‑ ‑

61HER HONOUR:  Sure.

62MR DEVLIN:  ‑ ‑ ‑ just to do some maths.

63HER HONOUR:  Yes. I declare that Mr Cavanaugh has been sentenced as a serious sexual offender.

64MR DEVLIN:  And with respect, Your Honour, I think the declaration is for him to be sentenced as a serious sexual offender on Charges ‑ ‑ ‑

65HER HONOUR:  3 to 16.

66MR DEVLIN:  ‑ ‑ ‑ 3 to 16.

67HER HONOUR:  Yes, I confirm that the declaration as a serious sexual offender relates to Charges 3 through to 16.

68MR DEVLIN:  Thank you, Your Honour.  I've got no further submissions.

69HER HONOUR:  Thank you.  Mr Anderson, would you like to have a quick word to your client before he leaves the court?

70MR ANDERSON:  No, I'll speak to him downstairs, Your Honour.

71HER HONOUR:  All right, thank you.  I have to give Mr Cavanaugh the sex offenders register to sign before he leaves.

72MR ANDERSON:  Your Honour, I can take that.

73HER HONOUR:  Thank you, Mr Anderson.

74MR ANDERSON:  Thank you, Your Honour.

75HER HONOUR:  I'll leave the Bench.  I'll leave my sentence here, if you want to check the figures before you leave the court.

76MR DEVLIN:  Thank you, Your Honour.

77HER HONOUR:  Temporarily adjourn the court, thank you.

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