Director of Public Prosecutions v Chester (a Pseudonym)
[2020] VCC 2088
•21 October 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-20-00351
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DARREN CHESTER (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE SMALLWOOD |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 7 October 2020 |
DATE OF SENTENCE: | 21 October 2020 |
CASE MAY BE CITED AS: | DPP v Chester (A Pseudonym) |
MEDIUM NEUTRAL CITATION: | [2020] VCC 2088 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr B. Sonnet | Office of Public Prosecutions |
For the Accused | Mr P. Smallwood | Stary Norton Halphen |
HIS HONOUR:
1Darren Chester,[1] you have pleaded guilty to two charges of unlawful and indecent assault. That crime, when this occurred, carried a maximum penalty of five years' imprisonment.
[1] This is a pseudonym.
2You have pleaded guilty to a settled indictment and must get the utilitarian benefit of that plea of guilty.
3You have pleaded in circumstances where the victim did not have to give evidence. She is a person with a cognitive impairment and these are circumstances where relieving her of that ordeal should be of real significance and shown to be of real significance.
4Insofar as remorse is concerned, because of your plea I am obliged to give you some credit for that but I take the view that your vehement denials of this offending in the past would indicate there is probably very little remorse. But in these circumstances it is not really what this sentencing exercise is about.
5You are now 64 years of age. At the time of this offending you had no prior convictions of any description as I understand it. The offending occurred when you were between the ages of 16 and 19 years. Whilst some of it may have been heard in a Children's Court, it is my view that a custodial sentence of any description back then, had you been sentenced at an earlier date, would have been very unlikely. It is conceded quite properly that, however, in this circumstance a custodial sentence is the only sensible sentencing option available.
6It has been submitted by your counsel that a wholly concurrent sentence - I will explain that in a moment - would be appropriate. But in my view there has to be some acknowledge, albeit, relatively moderate of the effect that you had upon your victim who in fact is, was, your sister.
7A summary of the offending is that you and your sister resided on a farm in the Gippsland area back in the early 1970s. You were 16-19 years of age at the time of the offending and you sister, who has an intellectual disability, was aged between 10 and 12.
8The first charge is a rolled up charged, I am aware of the matters relating to that. The second charge is a one off charge that involves her actually holding your penis, which is clearly of a different nature.
9The circumstances of the offending are in Charge 1 that between November 72 and November 73 she was helping you milk the cows in the property at Gippsland, she was wearing bathers. You pulled her over to where you were, pulled her bathers top down and rubbed your lower body onto her body for a few minutes, then stopped and told her not to tell anyone. That became a regular occurrence. There are a significant number of uncharged acts involved in all this so it could not be said that any of these occurred in an isolated sense. She would try to run away from you but you would grab her and drag her back into the shed.
10On a different occasion between those two time frames she was in her bedroom just waking up when you entered her bedroom, jumped on top of her and rubbed yourself up and down till you ejaculated.
11On another occasion, this gives rise to Charge 2, in that time frame she was in the cow shed with you when you made her hold your penis. At that time you were standing. You would also do that in the loungeroom, the bedroom and the cow shed out in the paddocks. They are all uncharged acts but indicate that Charge 2 certainly did not take place in isolation either.
12Around that time your house was transported and moved onto the property and family moved into it. Your victim, that is your sister, shared a bedroom with her other sisters while you had your own bedroom.
13On another occasion between November 72 and 73 the two of you were in the loungeroom of the new house, you pinned her down on the floor, you were naked, and rubbed yourself up and down on her till you ejaculated.
14On an occasion between 1 January 74 and December 1974 the two of you were in the paddock cutting bracken. A family friend came to visit the house and she was excited to leave the paddock and meet him. You prevented her from leaving the paddock and pinned her to the ground. You again rubbed herself up and down on her at the time. Her memory is that she is uncertain whether you were clothed or not.
15These matters all go towards Charge 1, obviously.
16On another occasion between November 74 and November 75, the two of you were again in the cow shed. You pulled her clothes down and you had your penis exposed. Again, you were rubbing your body up and down on her when she says that your mother walked in and started yelling at you.
17In any event that gives rise to the two charges for which you are to be sentenced.
18There is a victim impact statement which in very laudable terms simply describes the damage that this sort of offending has on young people. She points out that it has very much affected her life and she is now a significantly older woman. She says she does not trust people. She says that over the years she shut down a lot and has had real difficulty having to deal with other family members who do not believe her and in fact support you. I suspect that has probably come about because of your vehement denials of all this offending, which you now acknowledge did happen. She said that has caused a falling out within the family. That is a common consequence of this sort of conduct and one which I am sure the community very much disapproves of.
19She said in simple terms,
'I feel that my childhood was wrecked because of what happened because I didn't trust people'.
20Again, eloquently described.
21Offending such as this has to be regarded as serious. In the normal course of events calls for the application of general and specific deterrence. Because of your age specific deterrence for you is probably far less significant. However, there must be an aspect of denunciation and in my view there must be an appropriate punishment.
22Because of the offending you will be placed on the sex offenders register, even though I know that is already the case. I will advise you the reporting conditions will be for life. We are not in a position because of the COVID regulations and the way these matters are conducted now for me to have a copy of those provisions given to you, but you have got them in any event. And What I will do is have my associate send them to your solicitors and they can forward it onto the gaol, who will undoubtedly give you a copy in any event.
23Because of the sentences that I am to impose you will be sentenced as a serious sex offender. I am aware that cumulation is the appropriate disposition unless I order otherwise and I will be so ordering otherwise. I am aware that community protection is a paramount or principal consideration of this sentencing exercise. But as I have said, I think in your situation at your age the risk of you reoffending should be very moderate indeed. The Crown do not seek a disproportionate sentence. For the reasons that I have indicated the only disposition that is sensibly available here is one of custody.
24The circumstances are, in the background, that you on 18 October 2018 were sentenced in the County Court on two charges of incest and one charge of indecent act with a child under the age of 16 after a jury trial. They related to your daughter and related to offending occurring between March 1999 and March 2004. She also suffered from a moderate intellectual disability. That, as we discussed during the course of the plea, resulted in a jury trial. You appealed that matter and the Court of Appeal upheld the jury's verdict. Clearly you maintained and as I understand it continue to deny that that offending took place.
25When you were interviewed, I have read the sentencing remarks of Judge Gucciardo, by a psychologist or a psychiatrist - I cannot remember which - this offending for which I sentence you was raised and you 'vehemently' denied it.
26The consequences of that are that you were given a sentence of seven years and two months' imprisonment with a non-parole period of four years and six months. Ninety-eight days pre-sentence detention was declared. As it stands at the moment you are some two years and three months into that minimum term and I have to sentence on that basis.
27I make it clear at this point that were I sentencing you absent that disposition that had been imposed back then I would have consideration to a wholly or certainly at least partially suspended sentence for these matters.
28I then turn to matters personal to you, which are very succinctly set out in the sentencing remarks of His Honour Judge Gucciardo, which I have already read and also your counsel, again, succinct dispositions.
29Going through family backgrounds and histories when the offending is as old as this does not assist a great deal. The offending obviously was some 44-47 years ago and there is clearly a significant delay. You were still a teenager when it occurred and I accept from the Bar table and from Judge Gucciardo's sentencing remarks that you had a very difficult childhood and that you are a person of low intellect. Your mother was apparently aggressive towards both yourself and your siblings and your father was a physically abusive man. You left school during the course of Form 3 to earn money to help support on the family farm. Back then that was not an uncommon occurrence.
30In any event this offending took place and ultimately you were married and ultimately you went away to work.
31You do have, to your credit, a good work history although you have now retired. You worked at weeding mills, a soft drink factory, a rope factory, a plastics factory. You then worked as a spot welder and material handler for Holden and then Toyota. That all lasted for about 32 years. Your worked at Holden in Dandenong for about five years and you then had further shifts at Toyota in Altona. As I said, you retired about four or five years ago.
32You have been married twice and your first wife you met when you were in your late 20s and your current wife you met about 17 years ago. Before you were incarcerated you were her carer. I understand that she is not in good health and she is residing in Tasmania so would have been unable to give you contact visits in any event. But I accept that that does make it more difficult for you in prison that they are your personal circumstances.
33The situation is that in your position it is unlikely, I would have thought, and this is not me speculating. I am just simply trying to look at the reality of the situation. That unless you admit the original offending that you will be eligible for a sex offender's program and thereby parole.
34What I am endeavouring to do is discuss with your counsel in this and give what, in effect, would be the same as a suspended sentence had I been imposing that. I am going to give you a straight sentence, a significant portion of which will be concurrent and a moderate portion will be cumulative upon the sentence that you are undergoing.
35It will then be a situation of your effort, and obviously depending what view the authorities take, as to whether you actually serve that extra cumulation or not. I will not be increasing the minimum term that was imposed by His Honour Judge Gucciardo and after that it is a matter for you, and it is a matter between you and effectively the Office of Corrections.
36I take into account that you are undergoing these sentences during the course of the COVID pandemic. In your situation contact visits do not seem to mean a lot but there certainly is the fear of catching that particular virus in a contained set of circumstances which could lead to disaster. So far, fortunately in this state at least or in Australia that has not occurred.
37Totality, realistically, is also a very important aspect of this sentencing set of circumstances and I have taken that very much into account.
38In the end I think the sentence has to be moderate because you would not have been locked up in any event way back then but there must be an acknowledgement of the seriousness of what you did do to your sister.
39Accordingly, on Charge 1, six months; on Charge 2, six months.
40I direct that three months of the sentence imposed on Charge 2 be served concurrently with the sentence imposed on Charge 1, giving a total effective sentence of nine months.
41I make it clear that - sorry, on this indictment of nine months.
42I make it clear that I do not wish you to have your minimum term extended in anyway. But in discussion with counsel I am aware of the difficulties involved in how I express the aspect of concurrency.
43As a matter of law I put it on the basis that six months of that nine months is to be concurrent with any sentence currently being undergone.
44For total transparency I make it clear that what I am endeavouring to is make three months of that sentence cumulative upon the sentence you are already undergoing without in anyway shape or form effecting your opportunity for and entitlement to the parole date that already exists.
45These sentencing remarks will be sent to the parole board and if there is any difficulty with the way I have gone about this I can be so informed.
46This is a situation where again as I indicated during the course of the plea had you fought this out and been convicted by a jury it would have been a somewhat different story. In those circumstances I would have sentenced you to be imprisoned for a total effective sentence of 18 months and I would have directed, assuming that your non-parole had not been reached, I would have directed a new non-parole period. Which obviously in these circumstances I am total unable to even speculate as to what that would have been.
47Now there is no PSD, there is no other orders? Anything I need to do gents?
48MR SMALLWOOD: No, Your Honour.
49HIS HONOUR: All right.
50MR SONNET: No, Your Honour.
51HIS HONOUR: Obviously that is subject to revision, having been done on the spot. But as usual when I do it on the spot I do not second guess myself so I tend to have to revise them.
52So thanks very much for that, gentlemen. Very efficiently and sensibly conducted, if I may say so to each of you. Thanks for that.
53MR SONNET: Thanks, Your Honour.
54HIS HONOUR: As I understand it from my tipstaff, you want to have a quick yarn to your client, Mr Smallwood, so I will just leave the Bench, shut everybody else down and you can talk directly to him.
55MR SMALLWOOD: Thanks very much, Your Honour, as the court pleases.
56HIS HONOUR: Yes, thank you. Thanks, Mr Sonnet.
57MR SONNET: Thank you, Your Honour.
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